5.1 Export Compliance.
The Service, the Site and the Apps may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use the Site, the Apps or access the Service without prior written permission from Colgate once granted by the appropriate jurisdiction. The rights and obligations of End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. End-User shall indemnify and hold harmless Colgate from and against any and all losses, claims and expenses incurred by Colgate as a result of the breach of End-User's obligations under this Section.
5.2 Independent Contractors.
In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
5.3 Force Majeure.
In the event that Colgate is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, Colgate shall not be liable to the End-User for any damages resulting from such failure to perform or otherwise from such causes.
5.4 Governing Law.
These Terms of Service are governed by the laws of the State of New York, without regard to its choice of law provisions. The courts of general jurisdiction located within New York, New York, will have exclusive jurisdiction over any and all disputes arising out of, relating to or concerning these Terms Service or in which these Terms of Service are a material fact.
5.5 Dispute Resolution.
With respect to End Users in the U.S., any controversy or claim between the parties or arising out of these Terms of Service or any use of the Service, the Device, the Site or the Apps shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time telecommunications. If the arbitrator requires in-person hearings, the hearings shall be held in New York, New York. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.
5.6 Waiver of Jury Trial and Class Actions.
FOR INDIVIDUALS IN THE U.S., BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND COLGATE ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND COLGATE BOTH AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THESE TERMS OF SERVICE IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND COLGATE BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
5.7 Public Statements.
Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
End-User may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of Colgate. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Colgate, to the address set forth on the Colgate website to the attention of the Chief Legal Officer; and (b) in the case of End-User, to the address set forth in its account information.
5.10 Entire Agreement; Amendment.
These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms of Service may not be amended, supplemented or otherwise modified by you except by an instrument in writing signed by both parties and attached hereto. Colgate may modify the Terms of Service upon providing written notice to you either via the email address registered under your account or by posting such changes through the App or through the Site. Any use of the Service following any such modification constitutes acceptance of the modification. If you do not accept any modification, you must immediately cease all usage of the Service.
A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.
If any provision of the Terms of Service is held to be unenforceable, it shall be severed and the remaining provisions will remain enforceable. The severed provision will be replaced by an enforceable provision most nearly reflecting the intention of the parties.