END USER LICENSING AGREEMENT
IMPORTANT: PLEASE NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH WILL REQUIRE YOU TO RESOLVE ANY DISPUTE WITH 5 STAR ON AN INDIVIDUAL BASIS AND, EXCEPT IN LIMITED CIRCUMSTANCES, THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. PLEASE READ IT CAREFULLY.
I. Acceptance of Terms. By using the App, You agree to be bound by the terms of the EULA. If you are entering into this EULA on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the EULA, neither you nor the entity may Use the App.
II. Modifications. 5 Star reserves the right, its sole discretion to modify these terms, and any other documents incorporated by reference herein, at any time and without prior notice. Amendments will become effective thirty (30) days after they are posted on the Platform or a message is sent to you, or you are otherwise notified when you are logged into your account. Your use of the Platform after the expiration of the thirty (30) days shall constitute your consent to the changes. If you do not agree, you may not access or use the Platform.
IV. Eligibility. Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible. By registering or using the Platform to offer, post or provide services, users represent and warrant that they, and the employees, agents, contractors, and subcontractors who may perform work for them, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer their services and in relation to the specific job they are performing. 5 Star is not in the business of providing construction services. Users understand and agree that by creating and maintaining an account on the Platform, they receive only the ability to use the Platform to access persons interested in receiving services and related tools, including but not limited to the ability to message other users seeking those services. Users understand and agree that using the Platform does not guarantee that any users will engage them for services. Users understand and agree that they are customers of 5 Star, and are not 5 Star employees, joint venturers, partners, or agents. 5 Star acknowledges that they set or confirm their own prices, provide their own equipment, and determine their own work schedule. 5 Star does not control, and has no right to control, the services users provide (including how the users provide such services) if the user is engaged by another user, except as specifically noted herein.
V. Account Use. You agree to provide accurate, current, and complete information during the registration or request submission process and at all other times when you use the Platform, and to update information to keep it accurate, current, and complete. You are solely responsible for safeguarding your 5 Star password. You are solely responsible for all activity that occurs on your account, and you will notify 5 Star immediately of any unauthorized use. 5 Star is not liable for any losses by any party caused by an unauthorized use of your account. Notwithstanding the foregoing, you may be liable for the losses of 5 Star or others due to such unauthorized use.
VI. License. Subject to your compliance with this EULA, 5 Star grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display content solely for your personal and non-commercial use and only in connection with your access to and participation in the Platform. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or any content contained on the Platform, except as expressly permitted in these Terms. The Platform and all content contained on the Platform are provided to you AS IS. If you download or print a copy of any Platform content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by 5 Star or its licensors, except for the licenses and rights expressly granted in this EULA.
VII. Content. 5 Star may, in our sole discretion, permit you to post, upload, publish, submit or transmit content (“User Content”). By making available any User Content on or through the Platform, you hereby grant to 5 Star a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Platform, or for any other purpose in our sole discretion, except that private messaging through the Platform will not be used by 5 Star in public advertising. This license shall survive termination of the Platform or your account. 5 Star does not claim ownership rights in your User Content and nothing herein will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you. You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to 5 Star the rights in such User Content, as contemplated under this EULA; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or 5 Star’s use of your User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree that 5-Star may proofread, summarize or otherwise edit and/or withdraw your User Content (but has no obligation to do so), and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties herein. 5 Star reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of this EULA or otherwise harmful to the Platform or users, or for any other reason.
VIII. Prohibited Uses. You may not: (a) Use another user's account, misrepresent yourself or services offered through the Platform, misrepresent your identity or qualifications, misrepresent a project or other information in a quote request, or post Content in any inappropriate category or areas on the Platform; (b) Use any automated system including but not limited to robots, spiders, offline readers, scrapers to access the Platform for any purpose without 5 Star’s prior written approval; provided, however, that the operators of public search engines may use spiders or robots to copy materials from the Platform for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such material (5 Star reserves the right to revoke these exceptions either generally or in specific cases); (c) In any manual or automated manner copy copyrighted text, or otherwise misuse or misappropriate Platform information or Content including but not limited to, use on a mirrored, competitive, or third-party site; (d) Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; (e) Take any action that (i) may unreasonably encumber the Platform's infrastructure; (ii) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (iii) bypasses measures that are used to prevent or restrict access to the Platform; (iv) circumvents, disables or otherwise interferes with security features of the Platform; (v) distributes viruses or any other technologies that may harm 5 Star or users; (vi) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights; or (vii) circumvents or manipulates fee structure, billing, or fees owed; (f) Collect, harvest or publish any personally identifiable data including but not limited to names or other account information, from the Platform, or use the communication systems provided by the Platform for any reason not explicitly authorized by these Terms, including commercial solicitation purposes; (g) Recruit, solicit, or contact in any form other users for any use not specifically intended by the Platform; (h) Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law; (i) Advertise or solicit a Pro Service not related to or appropriate for the Platform; (j) Submit User Content that damages the experience of any user; (k) Take any action that may undermine the efficacy or accuracy of reviews or ratings systems; (l) Fail to perform services offered on the Platform as promised, unless the user fails to materially meet the terms of the mutually agreed-upon agreement for the services or refuses to pay, or a clear typographical error is made, or you cannot authenticate the user’s identity; (m) Engage in fraudulent conduct; (n) Sign up for, negotiate a price for, use, or otherwise solicit services from a user with no intention of following through with your use of or payment for the services; (o) Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Platform; and/or (p)Attempt to indirectly undertake any of the foregoing.
IX. Taxes and Fees. In connection with use of the Platform, you agree to pay certain taxes and fees. You agree to pay all applicable fees or charges based upon the fee and billing terms then in effect. Charges will be made to your credit card, PayPal, or other payment method designated at the time of sale. If you do not pay on time or payment fails for some reason, 5 Star reserves the right to the fullest extent allowed by law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in pursuit of payment. If you cancel your account at any time, you will not receive a refund. If you have a balance due on any account, you agree that 5 Star may charge such unpaid fees to your credit card or otherwise bill you for them. You understand and agree that you are solely responsible for determining your own tax reporting and sales tax collection requirements in consultation with tax advisers, and that we cannot and do not offer specific tax advice.
X. Payment. Payment for use of the Platform occurs at the point of sale and are non-refundable. Once users have agreed to retain each other’s services, payments for services between users shall be handled outside the Platform. By using the Platform, you expressly acknowledge and agree that 5 Star is not liable for any claims, disputes, causes of actions, complaints, or other actions arising from performance of agreements between users, payments between users, disputes between users arising from services, or any other claims at all arising between users. You agree that 5 Star is only a Platform to connect users and does not warrant or verify the content submitted by users, nor does it make any representations or warranties about the performance of services by users. YOU ARE SOLELY RESPONSIBLE FOR ANY DISPUTE BETWEEN USERS, FINANCIAL OR OTHERWISE.
XI. Intellectual Property. 5 Star content is protected by copyright, trademark, and other laws. Except as expressly provided herein, 5 Star and its licensors exclusively own all right, title, and interest in and to the Platform and all content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of 5 Star used herein are trademarks or registered trademarks of 5 Star. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
XII. No Endorsement of Users. 5 Star does not endorse any user or their services. 5 Star is not a party to any agreements between or among users, or other third parties. No agency, partnership, joint venture, or employment is created as a result of this EULA or any user's use of any part of the Platform, including but not limited to any scheduling or other services. Neither 5 Star nor users of the Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other. Users are required by these Terms to provide accurate information, and although 5 Star may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any user or their purported identity or background, regardless of the specific 5 Star services they are using or any involvement by 5 Star personnel in providing or scheduling those services. Any reference to any user credential on the Platform is strictly a designation of completion of a relevant account process or user review standard and does not represent anything else. Any such description is not an endorsement, certification or guarantee by 5 Star and is not verification of their identity and whether they are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform. You should always exercise responsibility, due diligence and care when deciding whether to have any interaction with any other user. 5 Star offers a non-exhaustive list of safety tips to consider when hiring a Service Member [ HIGHLY RECOMMEND DOING THIS AND REQUIRING ACKNOWLEDGMENT THAT IT HAS BEEN READ BY USER]. 5 Star is not responsible for any damage or harm resulting from your interactions with other users. By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from 5 Star with respect to such actions or omissions.
XIII. Violations of the EULA or Policies. Without limiting any other rights reserved herein, 5 Star may, in its sole discretion, take any action permitted by law for any violation of this EULA, the Policies, or any other policy or agreement between you and 5 Star, including but not limited to removing User Content you posted, limiting your account access, requiring you to forfeit certain funds or paid fees, assessing monetary penalties or costs, terminating your account, decreasing your status or search rank, canceling quotes or postings, blocking access, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution.
XIV. Disclaimers. YOUR USE OF THE PLATFORM, ANY USER SERVICES, OR CONTENT SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT 5 STAR DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO (A) MONITOR OR REVIEW USER CONTENT; OR (B) FOR ANY PERMISSIBLE PURPOSE, CONDUCT IDENTITY VERIFICATION, BACKGROUND (INCLUDING CRIMINAL BACKGROUND) OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING BUT NOT LIMITED TO SERVICE MEMBERS AND CUSTOMER MEMBERS. THE PLATFORM IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, 5 STAR AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE SERVICES OFFERED ON OR THROUGH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS PLATFORM, INCLUDING WITHOUT LIMITATION ALL COLLECTIVE CONTENT. 5 STAR MAKES NO WARRANTY THAT THE PLATFORM OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. 5 STAR ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. 5 STAR SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR COLLECTIVE CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM 5 STAR OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR MEMBERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM. YOU UNDERSTAND THAT 5 STAR DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW OR VET ANY SERVICES PROVIDED BY USERS. 5 STAR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON AND GIVE OR RECEIVE SERVICES. 5 STAR EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
XV. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM, YOUR OFFERING OR PROVIDING SERVICES, OR REQUESTING OR RECEIVING SERVICES THROUGH THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER 5 STAR NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT 5 STAR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES OR COLLECTIVE CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; OR (G) YOUR OFFERING OR PROVIDING SERVICES OR REQUESTING OR RECEIVING SERVICES THROUGH THE PLATFORM.IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF 5 STAR AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, SERVICES, AND/OR COLLECTIVE CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY SERVICES OR INTERACTIONS WITH ANY OTHER USERS EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO 5 STAR BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE.
XVI. Indemnification and Release. You agree to release, defend, indemnify, and hold 5 Star and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Platform or your violation of these Terms; (b) your User Content or the Collective Content; (c) your interaction with any Member or user; and (d) the request or receipt or offer or provision of services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such services.
XVII. Account Suspension and Termination. We may, in our discretion, with or without cause, with or without prior notice and at any time, decide to limit, block, suspend, deactivate or cancel your account in whole or in part. If we exercise our discretion to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from our support teams; (b) if appropriate in our sole discretion, we may communicate to other users that your account has been terminated, blocked, suspended, deactivated, or cancelled, and why this action has been taken; and (c) you will not be entitled to any compensation for Platform services cancelled or delayed as a result of account termination. You may cancel your use of the Platform and/or terminate your Account at any time by following the "Settings" link in in your profile, clicking "Account," and clicking "Deactivate Account." Please note that if your Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Platform, including, but not limited to, any reviews.
XVIII. Arbitration and Class Action Waiver. This section shall survive either parties’ termination of this EULA. PLEASE READ CAREFULLY.
a. Binding Arbitration. If you reside in the United States, you and 5 Star agree to resolve any claims relating to or in any way arising from your use of the Platform (collectively, "Disputes") through final and binding arbitration, except as otherwise specifically provided herein.
b. Waiver of Class Action. You acknowledge and agree that you and 5 Star are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and 5 Star otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this Agreement.
c. Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (the "FAA") governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1–800–778–7879.) If the FAA and AAA Rules are found not to apply to any Dispute hereunder, or the enforcement thereof, then that issue shall be resolved under the laws of the State of Minnesota without giving effect without giving effect to its conflict of laws provisions.
d. Notice; Informal Dispute Resolution. A party who intends to seek arbitration must first send written notice to the other party by certified mail. Notice to 586 Bavaria Lane, Chaska, MN 55318 Your notice must include (a) your name, postal address, telephone number, email address, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. 5 Star’s notice to you will be sent electronically to the email address 5 Star has on file associated with your 5 Star account, and will include (a) 5 Star’s name, postal address, telephone number and an email address at which 5 Star can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that 5 Star is seeking. If you and 5 Star cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or 5 Star may, as appropriate and in accordance with this Agreement, commence an arbitration proceeding.
e. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Minnesota and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
f. Arbitration Location and Procedure. Unless you and 5 Star agree otherwise, the arbitration will be conducted in Hennepin County, Minnesota and the state and federal courts located in Hennepin County, Minnesota shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. If the Dispute does not exceed $10,000, you or 5 Star may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and 5 Star subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or 5 Star may attend by telephone, unless the arbitrator requires otherwise. If the Dispute exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
g. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the "Liability Limitation; Exclusive Remedy" section as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party shall be entitled to an award of reasonable attorney fees. h. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
i. Changes. If 5 Star changes this "Dispute Resolution" section after the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending 5 Star written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of 5 Star’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will resolve any Dispute between you and 5 Star in accordance with the provisions of this "Dispute Resolution" section as of the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement).
j. Exceptions to Agreement to Arbitrate. Either party may bring a lawsuit solely for injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Hennepin County, Minnesota to resolve your claim.
XIX. Electronic Consent. You agree that 5 Star may provide you with notices, including those regarding changes to the EULA or Policies, by email, regular mail, or postings on the Platform. With your consent, 5 Star or users may also contact you by telephone or through text messages. If you have agreed to receive text messages or telephone calls from 5 Star or users, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by sending an email firstname.lastname@example.org with "Revoke Electronic Consent" in the subject line.
XX. Statute of Limitation. You agree that regardless of any statute or law to the contrary, any claim arising out of or relating to your use of the Platform must commence within one (1) year after the cause of action accrues or it shall be permanently barred.
XXI. Miscellaneous. Except as preempted by the FAA, this Agreement is governed by the laws of the State of Minnesota, without giving effect to its conflict of laws provisions. Each party agrees to submit to exclusive jurisdiction and venue in the state and federal courts sitting in Hennepin County, Minnesota for any actions for which the parties retain the right to seek injunctive or other equitable relief. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys' fees and expenses. This Agreement, including the corresponding Ad Order(s), constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void. Any notices to 5 Star must be sent to 586 Bavaria Lane, Chaska, MN 55318 via registered mail with return receipt or air mail or overnight courier, and are deemed given upon receipt. Notice to users may be effected by sending regular mail, or an email to the email address specified in user's account, or by posting a message to user's account interface, and is deemed received when sent (for email and mail) or no more than fifteen (15) days after having been posted (for a message). A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the EULA will remain in full effect. User may not assign any of its rights hereunder and any such attempt is void. 5 Star and user are independent contractors, not legal partners or agents.