5.1 Export Compliance.
The Service, the Site and the App 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 App 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. Subject to Section 5.5 below, the courts of general jurisdiction located within the Borough of Manhattan, New York City, New York State, 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.
SOLELY WITH RESPECT TO END-USERS IN THE U.S., AND EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND COLGATE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT COLGATE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. EXCEPT AS PROVIDED BELOW REGARDING THE CLASS ACTION WAIVER, SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Terms of Service. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of these Terms of Service and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms of Service, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms of Service will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
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. Colgate may assign these Terms of Service or any rights or obligations hereunder without consent. 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. In addition, notices to End-User (including notices of changes to these Terms of Service) may be made via posting to the App or Site or by email (including in each case via links). Without limitation, a printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based on or relating to these Terms of Service or the Service, Site or and App or Device to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
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, App or Site 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. Any such modification will not apply to any dispute that arose prior to the date the modification was posted.
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.