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Mothership – Terms of Use
Last Modified: December 4, 2024
Valence Labs, Inc. (“Valence Labs,” “we,” “us,” or “our”) provides you access to the Mothership application and accompanying tools and services (collectively, “Mothership”) through third-party app stores , and/or our web portal at vendor.mothership.fm, retailer.mothership.fm, or portal.mothership.fm (the “Site”), subject to these Terms of Use, together with any documents it expressly incorporates by reference (collectively, “Terms of Use”).
THIS CONTRACT INCLUDES A MANDATORY INDIVIDUAL ARBITRATION REQUIREMENT AS WELL AS CLASS ACTION AND JURY TRIAL WAIVERS. PLEASE CAREFULLY READ THE DISPUTE RESOLUTION REQUIREMENTS OF THIS CONTRACT SET OUT IN SECTION 21 BELOW.
By downloading or installing Mothership via the App Store or using the Site or by otherwise accessing and using Mothership, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our Privacy Policy, which can be found at http://mothership.fm/privacy_policy.html and is hereby incorporated by reference (the “Privacy Policy,” and together with the Terms of Use, the “Agreement”). If you do not agree to any of these terms or if you do not meet the eligibility standards set forth in these Terms of Use, then you are not permitted to use Mothership. Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.
We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of Mothership thereafter. Your continued use of Mothership following the posting of revised Terms of Use, as noted in the header stating the date last modified, means that you accept and agree to the changes. You are expected to check this page, so you are aware of any changes, as they are binding on you. We recommend that You print out a copy of these Terms for your records, which can be downloaded here. Upon request, we each agree to sign and provide each other with a signed copy of these Terms.
If We update these Terms, including specifically the DISPUTE RESOLUTION section, after the date you last indicated your acceptance of them, you may reject such change by providing Us written notice of such rejection by mail or hand delivery to Valence Labs, Inc. 3 Charles W Briggs Rd. Croton on Hudson, NY 10520, or by email from the email address associated with your account to legal@valence.io, within 30 days of the date such changes became effective, as indicated by the “Last Modified” date indicated above. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to the Terms, including specifically any changes to the DISPUTE RESOLUTION section. By rejecting changes, you are agreeing to the Terms, including specifically the DISPUTE RESOLUTION section, as of the date you last indicated acceptance to these Terms.
All registered users of Mothership are called “Merchants.” You will not be able to use Mothership until you register as a Merchant as set forth below. Merchants may create, access, manage, and update their own personal accounts on Mothership; post comments, reviews, and other content (collectively, “Merchant Content”) on Mothership and/or interact with other Merchants on Mothership; and purchase or sell products (“Products”) from or to other Merchants.
Merchants may be either a “Retailer” or a “Supplier.”
Suppliers may provide product information and details for Products that are available for purchase. Retailers may then place orders (“Orders”) for such available Products through Mothership via Retailer’s ecommerce platform. Orders placed through Retailer’s Shopify app are initiated in Mothership automatically and do not require Retailer’s intervention.
If a Retailer accepts a product quote to purchase Products for resale, the purchase (the “Transaction”) will be executed through the checkout process, in which case the Retailer and the Supplier are bound by the product quote and agree to complete the Transaction. The Retailer and Supplier acknowledge and agree that we may receive certain personal information relating to an end-customer. Once an order has been successfully fulfilled (or if an order is left in an error state for more than 90 days), Mothership 'anonymizes' the end-customer's personally identifiable information. We store end-customer personal information only for as long as is necessary to complete an order. Mothership does not have access to nor manages the payment made by the end-customer to a Retailer. With respect to payment by an end-customer, the Retailer acknowledges and agrees that for any payment it has secured the customer’s consent (i) to initiate one or a series of payments on their behalf for specified transactions; (ii) to the anticipated timing and frequency of any such payment; (iii) the determination of the amount of that payment as described in these Terms of Use; (iv) and the cancelation policy for any subscription as described in these terms of use. The Retailer acknowledges and agrees that it will keep a record of any end-customer’s written agreement to our Terms of Use.
Once an Order is placed, it is the sole responsibility of the Supplier and the Retailer to (i) agree upon payment, delivery, return policy, and customer service details relating to the Order and (ii) ensure the necessary sales and other taxes and/or mandatory state or local government fees are collected and remitted to all appropriate taxing authorities. The Supplier may either require the Retailer to pay for the Order prior to shipment of the applicable Products to the end-customer, or may choose to invoice the Retailer on a periodic basis. In either case, the shipping charges are calculated at the time the Order is placed in Mothership.
Valence Labs shall not be responsible for mediating or resolving any dispute between any Retailer and Supplier related to any Order. Notwithstanding the foregoing, Merchants agree to fully cooperate with Valence Labs, in the event Valence Labs elects to pursue any such mediation or resolution.
Valence Labs is under no obligation to accept any individual as a Merchant and may accept or reject any registration in its sole and complete discretion. In addition, Valence Labs may deactivate any account at any time, including, without limitation, if it determines that a Merchant has violated this Agreement. If we deactivate your account, you may lose access to your account and its contents.
By accessing and/or using Mothership, you agree to comply with the following restrictions on use:
We have the right, but not the obligation, to review and reject or remove any Product listing or other Merchant Content that we determine, in our sole discretion, violates this Agreement in any respect. We also reserve the right, in our sole and absolute discretion, to deny you access to Mothership, or to any portion of Mothership, without notice.
If you wish to become a Merchant, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Site using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. Valence Labs will not be liable for any loss or damage caused by any unauthorized use of your account.
We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.
If you, as a Supplier, receive an Order from one or more Retailers, you shall, with respect to each Retailer, (i) fulfill and ship the purchased Products directly to the Retailer’s end customer(s) in accordance with the details set forth in the Order and as otherwise agreed between you and the applicable Retailer; (ii) adhere to the return policy set forth in the Order or as otherwise agreed between you and the Retailer, as applicable; and (iii) pay all designated fees to Valence Labs and/or a Retailer’s ecommerce platform, as applicable, associated with the Order. Valence Labs does not supervise or take responsibility for the transfer of funds made through means outside of Mothership or through credit card transactions. Mothership will only send you and the Retailer a record of the items purchased.
As consideration for any Order you place, you shall pay the full purchase price of the Products in such Order as well as any applicable taxes or government fees via your ecommerce platform’s checkout process. You are required to provide the applicable Supplier with sales-tax resale or other exemption certificates that allow the Supplier to sell such Products to you without charging sales tax or value added tax (“VAT”).
You must provide current, complete, and accurate billing and credit card information in connection with each Order. You must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your Sign-In Name or Password). Valence Labs assumes each Order placed by you through Mothership has been reviewed and validly submitted to Mothership. An Order made through the Shopify app will only be accepted by Mothership if Shopify has assigned the order to Mothership for fulfillment. For other orders, Mothership will only accept an order for products supplied by a Mothership Supplier that are imported into the Retailer’s ecommerce platform from Mothership or are connected through the Site to a corresponding product offered by a Supplier in Mothership. For such orders, Mothership will only accept an order if the Retailer to end-customer transaction has been marked as paid by the Retailer or the Retailer has otherwise indicated that the order is ready to be processed through Mothership. If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. You are advised to check with your bank and credit card issuer for details. Valence Labs does not supervise or take responsibility for the transfer of funds made through means outside of Mothership or through credit card transactions. Mothership will only send to you and the Supplier a record of the items purchased. You agree to pay all costs of collection, including attorneys’ fees and costs, on any outstanding balance.
We grant you a worldwide, non-exclusive, non-transferable, non-sublicensable and revocable license to use Mothership subject to your eligibility and your continued compliance with these Terms of Use. We are not responsible to ensure, and disclaim any responsibility for, your ability to open, use or view the Content (defined in Section 7). As between you and us, we retain all right, title and interest in and to Mothership (other than your own Merchant Content, as defined in Section 1), and all related intellectual property rights. We reserve all rights not granted in this Agreement.
Mothership contains material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of Valence Labs (collectively referred to as the “Content”). The Content is owned exclusively by us or our third party licensors. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you shall not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You shall not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and Mothership automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Valence Labs (the “Valence Labs Trademarks”) used and displayed on Mothership are exclusively the property of Valence Labs. Other company, product, and service names located on Mothership may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Valence Labs Trademarks, the “Trademarks”). Nothing contained in this Agreement or otherwise on Mothership grants, nor should be construed as granting by implication, estoppel, or otherwise, any license or right to use the Valence Labs Trademarks, without our prior written permission specific for each such use. Use of the Valence Labs Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Valence Labs Trademarks inures exclusively to our benefit.
Elements of Mothership are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
Mothership provides Merchants with the ability to post and upload Merchant Content. You expressly acknowledge and agree that once you submit your Merchant Content, it will be accessible by others, and that there is no confidentiality or privacy obligations with respect to such Merchant Content, including, without limitation, any personally identifying information that you may make available.
YOU, AND NOT VALENCE LABS, ARE ENTIRELY RESPONSIBLE FOR ALL MERCHANT CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA MOTHERSHIP, AND YOU SHALL INDEMNIFY US FOR ALL LOSSES, LIABILITIES, CLAIMS, AND DAMAGES SUFFERED OR INCURRED BY US IN CONNECTION WITH ANY SUCH MERCHANT CONTENT.
You retain all copyrights and other intellectual property rights in and to your own Merchant Content. You do, however, hereby grant us and our sublicensees a worldwide, non-exclusive, royalty-free, freely sublicensable, perpetual and irrevocable license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Merchant Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.
If you submit Merchant Content to us, each such submission constitutes a representation and warranty to Valence Labs that such Merchant Content is your original creation (or that you otherwise have the right to provide the Merchant Content), that you have the rights necessary to grant to Valence Labs the license to the Merchant Content as set forth above, and that it and its use by Valence Labs and third parties as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates this Agreement.
Although we encourage you to e-mail us, we do not want to receive, and you should not e-mail us, any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
Supplier represents, warrants, and covenants that all Products (i) will conform to all purchase and delivery specifications (including the shipping policy) in the applicable Order, or otherwise provided to Valence Labs or the Retailers, (ii) will be free from defects (e.g., workmanship, material, and manufacture), (iii) will be of merchantable quality, (iv) will be packaged for shipping in a manner consistent with best practices of common carriers and the shipping guidelines, and (v) will be fit for the purposes intended by Valence Labs and/or the Retailers. All warranties run to the benefit of Valence Labs and the Retailers.
If Supplier collects or accesses any personally identifiable or transactional information, Supplier shall use such information solely for the purposes of processing and shipping such Retailer’s Order.
All Products are provided by the third-party Suppliers, and not by Valence Labs; therefore, Valence Labs has no control over, and hereby disclaims any and all liabilities arising out of or associated with, the condition, quality, safety, legality or suitability of any Product. TO THE FULLEST EXTENT PERMITTED BY LAW, SUPPLIERS AND RETAILERS, ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE ASSIGNS, SUBROGEES, REPRESENTATIVES AND ALL OTHER PERSONS OR ENTITIES ACTING FOR, BY OR THROUGH THEM, HEREBY RELEASE AND FOREVER DISCHARGE VALENCE LABS, ITS DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, AND INSURERS, FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR RIGHTS OF ACTION, OF WHATEVER NATURE, CHARACTER OR DESCRIPTION, FOR PERSONAL INJURY, PROPERTY DAMAGE OR DEATH THAT ARISE FROM, ARE RELATED TO OR ARE IN ANY WAY CONNECTED WITH ANY ORDER OR PRODUCT.
YOU ACKNOWLEDGE THAT THE SITE OR MOTHERSHIP MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. MOTHERSHIP, THE SITE, AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT MOTHERSHIP, THE SITE, OR THE CONTENT WILL OPERATE ERROR-FREE OR THAT MOTHERSHIP, THE SITE, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE MOTHERSHIP, THE SITE, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF MOTHERSHIP, THE SITE, OR THE CONTENT SHALL BE LIMITED TO THE TOTAL FEES THAT YOU HAVE PAID TO US WITHIN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY CLAIM.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
IN SOME STATES, INCLUDING THE STATE OF NEW JERSEY, THERE ARE LIMITATIONS ON THE ENFORCEABILITY OF INDEMNIFICATION AGREEMENTS IN CONNECTION WITH CONSUMER PURCHASES OF GOODS OR SERVICES. IN THOSE STATES, THIS PROVISION SHALL BE ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
Mothership may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of such External Sites. The External Sites are developed and provided by others, and you should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites, and we do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
Furthermore, the use of an External Site is subject to such External Site’s terms of use and privacy policy. We do not control your access to, use of, or content provided on such External Sites, or the information collected when you visit such External Sites, even if you visit our Site through a link from an External Site.
Valence Labs reserves the right to gather and aggregate information provided by Retailers and Suppliers to enhance the efficiency and use of Mothership. Valence Labs does not currently share any Retailer or Supplier information, including the Sign-In Name, Password, or other Unique Identifiers, with third party advertising or marketing groups. However, Valence Labs may share personally identifiable information, including shipping addresses, with those third parties that require such information to fulfill the Orders, which include, but are not limited to, payment processors, Shopify, and delivery and shipping providers. Further discussion of our information collection and sharing practices can be found in our Privacy Policy.
Merchants are responsible for ensuring all applicable resale or other exemption certificates are exchanged, and are responsible for all charges, taxes, and other fees imposed by any governmental authority related to the purchase, distribution, or sale of the Products arranged through Mothership. If Mothership is later held liable for sales or use taxes by any state or local jurisdiction in connection with use of Mothership or sales of the Products sold by Supplier to Retailer, Mothership shall invoice the appropriate Merchant and Merchant shall indemnify Mothership for any such taxes unless Merchant provides suitable exemption certificate.
To the extent permitted by applicable law, you shall defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any and all damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of Mothership or the Content; (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right; (iv) our use of any Merchant Content that violates a third-party’s intellectual property right; and/or (v) your purchase, sale, or use of a Product. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
We shall defend, indemnify, and hold you and your officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any and all damages, liabilities, losses, expenses, claims, actions, and/or demands brought by a third-party, including, without limitation, reasonable legal and accounting fees, solely arising or resulting from our grossly negligent, fraudulent or willful violation of this Agreement as determined by a final decision of a court of competent jurisdiction or binding arbitration; provided that you notify us of any such claim in a timely manner so that we may adequately prepare and defend against any such claim.
Valence Labs is based in the United States. We make no claims concerning whether Mothership or the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use Mothership or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of Mothership, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of Mothership at any time without prior notice or liability. To the extent practically possible, we agree to endeavor to provide a 30-day advance notice prior to the termination of all or any part of Mothership.
Valence Labs respects the intellectual property rights of others and endeavors to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Copyright Agent
Valence Labs, Inc.
3 Charles W Briggs Rd
Croton on Hudson, NY 10520
legal@valence.io
If you believe that your work has been copied on Mothership in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location within Mothership where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
The Agreement is governed by, and any action related to the Agreement will be governed by, the laws of the State of New York without regard to its conflict of laws provisions.
TO THE EXTENT ALLOWED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY STATUTES OF LIMITATION, YOU MUST BRING ANY CLAIM OR CAUSE OF ACTION ARISING FROM OR RELATING TO YOUR ACCESS OR USE OF THE SITE AND MOTHERSHIP WITHIN ONE (1) YEAR FROM THE DATE ON WHICH SUCH CLAIM OR ACTION AROSE OR ACCRUED OR SUCH CLAIM OR CAUSE OF ACTION WILL BE IRREVOCABLY WAIVED. YOU AGREE THAT IF YOU FAIL TO GIVE SUCH NOTICE, SUCH CLAIMS SHALL BE WAIVED.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE TIME LIMITATIONS FOR CLAIMS THAT ARE INCONSISTENT WITH ORDINARY STATUTES OF LIMITATION. THE ABOVE EXCLUSIONS WILL APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
If a dispute arises between you and us, we will strive to resolve it fairly. In some cases, however, a third party may be needed to help resolve such disputes. This section of our Terms (the “Arbitration Agreement”) strictly limits both you and us to resolving all disputes through individual arbitration or small claims court only.
YOU AND VALENCE LABS AGREE THAT ALL DISPUTES WHICH CANNOT BE RESOLVED INFORMALLY MUST BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION OR IN SMALL CLAIMS COURT ONLY, AND YOU AND VALENCE LABS WAIVE ALL RIGHTS TO A JURY TRIAL AND TO PARTICIPATE IN ANY CLASS ACTION OR CONSOLIDATED PROCEEDING.
All Disputes Covered. The term "Disputes" is defined broadly to include all claims and controversies of any type, including, but not limited to, statutory, regulatory, constitutional, contractual, common law, and tax-related claims and controversies, as well as those involving allegations of negligence, fraud, and misrepresentation.
All Persons and Entities Covered. This Arbitration Agreement extends to all agents, attorneys, contractors, subcontractors, employees, service providers, and all others acting on behalf of you or us, including those on whose behalf you visit the Websites or use the Apps. In addition, it is binding on the heirs, successors, agents, and assigns of you and us, as well as all corporations related in any way to Valence Labs. If a Dispute involves parties who are not subject to this Arbitration Agreement, claims involving such parties shall be stayed pending the resolution of all related arbitrations.
Governing Law. This Arbitration Agreement is governed exclusively by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq., and not any state or local laws. You and we agree that this Arbitration Agreement involves interstate commerce under the FAA. The laws of the State of New York, but not including its conflicts of law rules, shall govern exclusively the resolution of all Disputes except to the extent preempted by federal law.
The Informal Settlement Process. Before initiating an arbitration or small claims court case, you and we must first participate in the informal dispute resolution process as follows:
(a) To start the informal settlement process, the party initiating any Dispute (“Claimant”) must send a signed, written statement (“Claim Statement”) to the other party (“`”). The Claim Statement must include the Claimant’s full name, mailing address, email address, the date(s) the Dispute arose, a detailed explanation of the facts relevant to the Dispute, and a proposal for resolving it, including any claimed amount and how that amount it was calculated. The Respondent may request additional information, and the Claimant agrees to reasonably investigate and provide additional information responsive to the Respondent’s request. Claim Statements must be sent to Valence Labs either by certified mail or by email to these addresses:
legal@valence.io
or
Valence Labs, Inc.
3 Charles W Briggs Rd
Croton on Hudson, NY 10520
(b) If the Claimant is represented by an attorney, the Claim Statement must authorize the Respondent to share information about the Dispute with the named attorney. The Claimant's attorney must sign the Claim Statement under oath or penalty of perjury, in accordance with 28 U.S.C. § 1746 or similar state laws, certifying compliance with Rule 11 of the Federal Rules of Civil Procedure (“Rule 11”). The certified Claim Statement will be admissible in any arbitration or court proceeding related to the Dispute.
(c) Once a Claim Statement meeting the requirements of the Arbitration Agreement is received by the Respondent, the Claimant and Respondent shall work in good faith to resolve the Dispute for a period of at least 60 days. Sending the Claim Statement pauses any applicable statutes of limitations for the 60-day period starting from the date the Respondent receives a proper Claim Statement.
(d) Failure to complete in good faith the informal settlement process is a material breach of this Arbitration Agreement, Any arbitration or small claims court action filed under this Arbitration Agreement must state that the Claimant has completed in good faith the informal settlement process. No arbitrator may be appointed to hear a Dispute where the requirements of the informal settlement process have not been satisfied. If, after an arbitrator is appointed, the arbitrator concludes that the Claimant or Respondent have not participated in good faith in the informal settlement process, that arbitrator shall consider that failure a default and dismiss the arbitration. In such a circumstance, the arbitration may require the defaulting party and/or its attorneys to reimburse the non-defaulting party for all arbitration fees and costs it has incurred.
(f) At the end of the informal settlement process, unresolved Disputes from the Claim Statement, and no others, can then and only then be pursued on an individual basis only either in (1) binding individual arbitration (as provided for below), or (2) small claims court, if the requirements of small claims court are satisfied.
No Class Actions. TO THE FULLEST EXTENT ALLOWED BY LAW, AND EXCEPT AS SPECIFIED IN THE MASS ARBITRATION RULES, BELOW, YOU AND WE AGREE THAT ALL DISPUTES MUST BE RESOLVED INDIVIDUALLY, AND NOT VIA CLASS ACTION, EVEN IF THIS ARBITRATION AGREEMENT IS FOUND TO BE UNENFORCEABLE.
This means: (a) neither you nor we can file or participate in a class action, consolidated action, or representative action; (b) an arbitrator cannot combine claims from multiple claimants or oversee a consolidated, class, or representative action; and (c) an arbitrator’s decision or award will apply only to that specific claimant's Dispute. This section does not limit the relief available to you or us in individual arbitration or small claims court, nor does it restrict either party's right to settle Disputes by mutual agreement, including through class-wide settlements via mediation or other means.
Fees and Costs. You and we are responsible for our own costs and attorneys’ fees in connection with all Disputes. However, either party may seek to recover such fees and costs if allowed by applicable law or arbitration rules applicable to the Dispute. If an arbitrator finds that a claim or counterclaim was made or prosecuted in bad faith, for an improper purpose, to exert undue pressure, or was entirely frivolous, the arbitrator may award costs, arbitration fees, and attorneys’ fees to the defending party.
Changes. If Valence Labs changes this Arbitration Agreement after you last accepted the Terms, you can reject those changes by sending written notice within 30 days of the effective date of such changes. The notice must include your full name and mailing address, and clearly state that you reject the Arbitration Agreement changes. By rejecting these changes, you agree to arbitrate any dispute based on the version of the Arbitration Agreement that was in effect when you last agreed to the Terms. Send your notice by certified mail or email to:
legal@valence.io
or
Valence Labs, Inc.
3 Charles W Briggs Rd
Croton on Hudson, NY 10520
Improperly Commenced Arbitration. If either party believes the other party has started or is about to start an arbitration in violation of this Arbitration Agreement (including the Mass Arbitration rules set forth below), you and Valence Labs agree that that party can request a court order to stop the arbitration and that any arbitration subject to such a court action shall be stayed until the court action is concluded. The court in such action shall have the authority to order the payment of costs and reasonable attorneys' fees related to such a proceeding upon a finding that an arbitration was commenced in knowing violation of the Arbitration Agreement.
Survival. The Arbitration Agreement will survive and remain in effect even after your relationship with Valence Labs has ended and despite any action purporting to terminate any agreement between you and Valence Labs.
Severability. Except as expressly provided in the Mass Arbitration rules, below, if any part of the Arbitration Agreement is found to be unenforceable, its remaining provisions will still apply to the fullest extent allowed by law.
ARBITRATION RULES AND REQUIREMENTS
In arbitration, there is no judge or jury, but the arbitrator has the authority to hear all Disputes and grant the same relief a court could. The arbitrator must interpret and apply the Terms and this Arbitration Agreement just as a court would. The results of an arbitration shall have no effect on other Disputes between you and Valence Labs, and shall not be binding in any other Disputes in which you are not a party.
Any court with proper authority and jurisdiction can enforce this Arbitration Agreement, including any matters related to Mass Arbitration, as defined below. The court may also prevent the filing or continuation of any arbitration, or the imposition of fees and costs associated with any arbitration, if such a filing or the imposition of fees or costs does not comply with the requirements of the Arbitration Agreement.
Unless stated otherwise in this Arbitration Agreement, if you and we disagree about whether a Dispute must be arbitrated, the scope of the arbitrator's authority, or the enforceability of any specific terms of the Arbitration Agreement, the arbitrator shall have the sole authority to resolve these such disputes.
However, if you or we argue that this Arbitration Agreement is not for any reason an enforceable contract, only a court with proper authority can decide that matter, and any pending arbitration shall be stayed until a final decision on the matter by a court in which such a claim is asserted after the exhaustion of any appeals. This provision does not limit either party’s right to challenge in a court of competent jurisdiction an improperly commenced arbitration as elsewhere provided in this Arbitration Agreement.
In any arbitration between you and Valence Labs, the Respondent may choose to make a written settlement offer at any time after the initiation of arbitration but is under no obligation to do so. The settlement offer amount or terms will not be revealed to the arbitrator until after an award (including any dispositive decision) is made. To the fullest extent permitted by law, if the award is less than the settlement offer or favors the Respondent, the Claimant must pay the Respondent’s arbitration fees and costs incurred after the offer to the fullest extent permitted by law.
The arbitration process will vary depending on whether the Dispute is pursued individually or as part of a Mass Arbitration (defined below). These individual arbitration rules do not apply to Disputes that are part of a Mass Arbitration except in connection with the limited bellwether arbitrations described in the Mass Arbitration Rules set forth below.
If the American Arbitration Association (“AAA”) is for any reason whatsoever unavailable, unable, or unwilling to handle an arbitration assigned to it under this Arbitration Agreement (including as a result of any aspect of this Arbitration Agreement which does not meet with their approval), or otherwise finds that it cannot arbitrate a Dispute, you and we will negotiate in good faith to choose an alternative arbitrator or organization to conduct the arbitration in accordance with all of the requirements of this Arbitration Agreement. If no such agreement is reached, the parties shall jointly ask a court to appoint an arbitrator or arbitration organization under 9 U.S.C. § 5 to conduct the arbitration in accordance with all of the requirements of this Arbitration Agreement.
Individual Arbitration Rules. All individual arbitrations (those not subject to the Mass Arbitration rules, below) shall be before a single arbitrator of the AAA. Arbitrations involving consumers will be governed by this Arbitration Agreement and the AAA Consumer Arbitration Rules (“Consumer Rules”) and the AAA Consumer Due Process Protocol. However, the Consumer Rules shall only apply if the Dispute involves or is related to goods or services offered or purchased for personal or household use, and not goods or services offered or purchased for any other use or purpose, including in support of a business, job, or profession or for resale. Arbitrations not governed by the Consumer Rules shall be governed by this Arbitration Agreement and the AAA Commercial Arbitration Rules and the AAA Optional Appellate Rules. If there is a conflict between this Arbitration Agreement and any applicable AAA rules and protocols, these terms will control.
For consumer arbitrations where claims or counterclaims are under $25,000 USD each, the case will be decided without appearances, based only on submitted documents (including sworn statements) under R-29 of the Consumer Rules (or its successor under the AAA Consumer Rules). However, the arbitrator may permit reasonable and appropriate discovery (proportionate to the Dispute amount and not imposing undue cost or hardship on either of the parties), and may allow a hearing by phone or video conference, unless, in the arbitrator’s sole discretion, fairness requires an in-person hearing and the cost of an in-person hearing is reasonable compared to the Dispute amount. All decisions by an arbitrator, including any awards, can be enforced or confirmed in any court with proper jurisdiction, but they shall have no precedential effect in another arbitration.
To begin an arbitration with the AAA, the informal settlement process must first be completed. Afterward, the claiming party must send a letter describing the Dispute, including any amount claimed, and requesting arbitration to the American Arbitration Association Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043 or by filing a request online through the AAA website.
Any attorney representing a Claimant must sign, under oath or penalty of perjury, a Rule 11 certification with regard to the arbitration demand, which certification shall be included with any arbitration demand under this Arbitration Agreement. This certification will be admissible in any arbitration or court proceeding related to the Dispute, and the arbitrator shall have the authority to impose sanctions as provided for by Rule 11.
Mass Arbitration Rules. If 25 or more claimants (each a “Mass Arbitration Claimant”) or their lawyers file or disclose to Valence Labs an intention to file demands for arbitration against Valence Labs raising substantially identical Disputes, and counsel for the claimants are the same or coordinated across these Disputes (a “Mass Arbitration”), these special mass arbitration rules shall apply to the exclusion of any other mass arbitration rules published by any arbitration organization, including the AAA. Any dispute concerning whether these Mass Arbitration Rules apply or challenging the enforceability of any of these Mass Arbitration Rules may only be resolved by a court of competent jurisdiction, and no arbitrator shall be appointed in the absence of such a court determination except by agreement of the parties.
Each Mass Arbitration Claimant must satisfy the informal settlement process outlined above before proceeding to arbitration, including the requirement of a signed certification of counsel under oath or penalty of perjury (consistent with 28 U.S.C. § 1746 or similar state laws) of compliance with Rule 11 for each claimant. Arbitrators in any resulting arbitrations will have the authority to impose sanctions as allowed by Rule 11. Lawyers representing the Mass Arbitration Claimants shall also certify, under oath, that no other attorney represents the Mass Arbitration Claimants in connection with the Disputes raised during the informal settlement process.
If the informal settlement process fails for any Mass Arbitration Claimants, counsel for the parties will each select up to five (5) Mass Arbitration Claimants (totaling no more than ten (10) and with an equal number selected by each of counsel for the Mass Arbitration Claimants and counsel for us) for bellwether arbitrations which will be decided individually under the Individual Arbitration Rules, above, with each case assigned to a different arbitrator. Any other arbitration claims which have been filed by other Mass Arbitration Claimants must be dismissed without prejudice before the bellwether arbitrations can begin.
Each bellwether arbitration must be completed within 120 days unless otherwise agreed. No further arbitration demands can be filed by Mass Arbitration Claimants during the pendency of the bellwether arbitrations or during the subsequent mandatory mediation process described below.
After the bellwether cases are resolved, the parties’ counsel will promptly participate in good faith in non-binding, confidential mediation for at least 60 days to resolve all remaining Disputes of the Mass Arbitration Claimants. This mediation will be conducted by the AAA under its current Mediation Procedures unless both sides agree to a different mediator or mediation process.
To prevent the Disputes asserted by the Mass Arbitration Claimants from expiring, all statutes of limitation for their Disputes will be paused until the completion of the informal settlement process, the bellwether arbitrations, and the completion of the mediation described below.
Mass Arbitration Claimants whose claims remain unresolved after mediation can only pursue their disputes in small claims court (if eligible) or through a documents-only arbitration with FairClaims, Inc. (and not with the AAA or any other arbitrator or arbitration-sponsoring organization). The applicable FairClaims rules shall be either those for Small Claims or the Fast Track rules will depend on the claim amount, information about which is available here. Decisions from the bellwether arbitrations can be used in FairClaims arbitrations for their persuasive value only, but shall not be binding. Discovery obtained in the bellwether cases may be used in connection with FairClaims arbitrations subject to appropriate confidentiality protections.
If any aspect of these Mass Arbitration Rules is determined to be unenforceable for any reason in a court decision as to which further review is foreclosed, and as to which all available motions, appeals, and petitions for review have been resolved fully or not timely pursued (a “Final Determination”), all unresolved Disputes between the Mass Arbitration Claimants and Valence Labs shall be resolved in the courts of the State of New York. Valence Labs shall have the right to request such a case be removed to federal court if it so qualifies. In any court action filed under this provision, the class of plaintiffs shall be strictly limited to Mass Arbitration Claimants who have satisfied the informal settlement process and who have unresolved Disputes.
If any arbitrations filed by or for Mass Arbitration Claimants are still pending after a Final Determination, those Mass Arbitration Claimants must immediately dismiss their arbitrations without prejudice. A ruling that the Mass Arbitration Rules or any aspect of them are unenforceable will not affect the validity or enforceability of any other parts of this Arbitration Agreement or any other part of the Terms.
You acknowledge and agree that in the event of a breach or threatened violation by you of our intellectual property rights or a breach or threatened violation of confidentiality by you relative to our confidential and proprietary information, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
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