The entity you are contracting with is Brands of Nicaragua, S.A. parent company and creator of www.BrandsofNicaragua.co if you reside in Nicaragua, the United States, or any other country in the world.
This User Agreement is effective upon accessing and using our services, through registration of a Brands of Nicaragua, S.A. account or other electronic click-through since March 1st, 2014. Revised February 28th, 2017.
Please be advised that this User Agreement contains provisions that govern how claims you or we may have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate (see Legal Disputes, Section B (“Agreement to Arbitrate”)). Unless you opt-out: (1) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
You represent and warrant to us that: (a) you are eligible to register and use the Services and have the right, power, and ability to enter and perform under this Agreement, and grant the rights, licenses, and authorizations under this Agreement, (b) the name you provided when you registered is your name or business name under which you sell goods and services, (c) you will use the Services only to transact on your own account and not on behalf of any other person or entity, (d) you will fulfill all of your obligations on transactions to each user and Brands of Nicaragua, S.A., and will resolve any consumer dispute or complaint directly with the purchaser and/or us, (e) you and all transactions initiated by you will comply with all law applicable to you, and (f) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking or in any manner so as to interfere with the use of the Services.
About Brands of Nicaragua, S.A.
Brands of Nicaragua, S.A. is an e-commerce platform that allows users with a brand from Nicaragua to offer and sell their products and services, and allows consumers to buy just about anything in a variety of pricing formats and locations. As a marketplace, Brands of Nicaragua, S.A. does not own or sell most of the items listed on this site, so the actual contract for sale is directly between the sellers and buyers. Brands of Nicaragua, S.A. is not a traditional marketplace.
While we may provide pricing, shipping prices, and other guidance in our Services, such guidance is solely informational and you may choose not to follow it. Also, while we may help facilitate the resolution of disputes, Brands of Nicaragua, S.A. has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will complete a transaction or return an item.
Using Brands of Nicaragua, S.A.
While using or accessing the Services you will not:
§ post, send us, list or upload content or items in inappropriate categories or areas in our sites;
§ breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
§ use our Services if you are not able to form legally binding contracts (for example if you are under 18), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
§ fail to pay for items purchased by you, unless the seller has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot contact the seller;
§ fail to deliver items sold by you through our services, unless the buyer fails to follow the posted terms, or you cannot contact the buyer;
§ manipulate the price of any item or interfere with other users’ listings;
§ post false, inaccurate, misleading, defamatory, or libelous content;
§ take any action that may undermine the feedback or rating systems
§ transfer your Brands of Nicaragua, S.A. account (including Feedback) and user ID to another party without our consent;
§ distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
§ distribute viruses or any other technologies that may harm Brands of Nicaragua, S.A. services, or the interests or property of Brands of Nicaragua, S.A. users;
§ use any robot, spider, scraper or other automated means to access our Services for any purpose;
§ bypass our robot exclusion headers, interfere with the working and functions of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
§ export or re-export any Brands of Nicaragua, S.A. application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
§ copy, modify, or distribute rights or content from our Services or Brands of Nicaragua, S.A.’s copyrights and trademarks;
§ copy, reproduce, reverse engineer, modify, create derivative works from, distribute, or publicly display any content (except for your information) from our sites, services, applications, or tools without the prior express written permission of Brands of Nicaragua, S.A. and the appropriate third party, as applicable;
§ commercialize any Brands of Nicaragua, S.A. application or any information or software associated with such application; or
§ harvest or otherwise collect information about users, including email addresses, without their consent.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services.
Abusing Brands of Nicaragua, S.A.
Without limiting other remedies, we may limit, suspend, or terminate our services and user accounts, restrict or prohibit access to, and your activities on, our Services, delay or remove hosted content, remove any special status associated with the account, we may reduce or eliminate any discounts, and we may take technical and legal steps to keep you from using our Services if:
§ we think that you are creating problems or possible legal liabilities;
§ we think that such restrictions will improve the security of the Brands of Nicaragua, S.A. community or reduce our or another Brands of Nicaragua, S.A. user’s exposure to financial liabilities
§ we think that you are infringing the rights of third parties;
§ we think that you are acting inconsistently with the letter or spirit of this User Agreement and/or our policies;
§ despite our reasonable endeavors, we are unable to verify or authenticate any information you provide to us; or
§ you fail to pay us all fees due for our Services by your payment’s due date.
When a buyer or seller issue arises we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement and to do the right thing for both, buyers and sellers.
Promotional Offers: Sometimes we send offers to selected groups of Brands of Nicaragua, S.A. customers on behalf of other businesses. When we do this, we share with that business your name and address. If you do not want to receive such offers, please opt-out of using our Services.
Confidential Information. You may receive information relating to us, our Affiliates, Third Parties or to the Services that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain our exclusive property, (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services, and (c) you will not otherwise disclose Confidential Information to any other person.
To subscribe to Brands of Nicaragua, S.A., have your products uploaded, and be assisted in creating and generating content is free of charge. However, a minimum fee of 30% on the product-listing price shall be applied to each transaction between a buyer and a seller. If the transaction is cancelled or revoked for any reason, Brands of Nicaragua, S.A. is not obligated to reimburse its commission or fee. We may change our fees from time to time by posting the changes on the Brands of Nicaragua, S.A. site 10 days in advance, but with no advanced notice required for temporary promotions.
The monthly subscribers to our monthly surprise boxes will have the monthly fee deducted automatically from the payment information provided every month until the subscription is cancelled by the consumer. The cancellation must be done 15 days prior to the date in which we’re supposed to deduct the amount from their payment information.
You must have a payment method on file when selling on Brands of Nicaragua, S.A. and pay all fees and applicable taxes associated with our Services by the payment’s due date. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, as well as retaining collection agencies and legal counsel). Brands of Nicaragua, S.A., or the collection agencies we retain, may also report information about your account to credit bureaus, and, as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Brands of Nicaragua, S.A. reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us (postal) at Brands of Nicaragua, S.A., Del hospital militar viejo 2c. Al norte y 1c y 2 casas al oeste, frente al canal 8, casa No. 308. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Brands of Nicaragua, S.A. account, you must contact the collection agency directly.
When supplying an item to be listed, the seller agrees to comply with the rules for listing and selling products using Brands of Nicaragua, S.A.. The seller hereby also agrees that:
§ He shall be responsible for the accuracy and content of the listing(s) and item(s) offered.
§ His listing(s) may not be immediately searchable by keyword or category for several days. Brands of Nicaragua, S.A. can’t guarantee exact listings’ durations.
§ We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors including, but not limited to:
§ buyer’s location, search query, browsing site, and history;
§ item’s location, listing format, price and shipping cost, terms of service, history, and relevance to the user query;
§ seller’s history, seller’s ratings, and Feedback; and
§ number of listings matching the buyer’s query.
§ Accordingly, to drive a positive user experience, a listing may not appear in some searches and browsing results regardless of the sort order chosen by the buyer.
§ Some advanced listing upgrades will only be visible on certain Services.
When buying an item, you agree to the rules for buyers and that:
§ You are responsible for reading the full item listing and description before making a commitment to buy.
§ You enter a legally binding contract to purchase an item when you commit to buy an item.
§ We do not transfer legal ownership of items from the seller to the buyer.
International Buying and Selling
Many of our Services are accessible to international buyers. We may offer certain programs, tools, and site experiences of particular interest to international buyers, such as international shipping calculation tools. Sellers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items.
We will display your listing(s) on the Brands of Nicaragua, S.A. site where you listed your item for sale, including those situations in which international shipping is needed.
To assist users who may speak different languages, we may translate listings and other user and/or Brands of Nicaragua, S.A. content, in whole or part, into other languages. If you are a buyer, we may also provide you with access to tools with which you can request a translation of certain content on our sites such as texts from a listing’s name and/or description, or a message from a Brands of Nicaragua, S.A. user. The accuracy or availability of such on-demand translations are not guaranteed.
When providing us with content or delegating to us content creation for your brand using Brands of Nicaragua, S.A.’s Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights, and intellectual property rights you have in the content, in any media known now or in the future. Furthermore, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights against us, our sublicenses or assignees.
You represent and warrant that none of the following infringe any intellectual property right: your provision of content to us, your posting of content using the Services, and our use of such content (including works derived from it) in connection with the Services.
We may offer catalogs of stock images, descriptions and product specifications that are provided by third-parties (including Brands of Nicaragua, S.A. users). You may use catalog content solely in connection with your Brands of Nicaragua, S.A. listings.
While we try to offer reliable data, we cannot promise that the catalogs will always be accurate and up-to-date, and you agree that you will not hold our catalog providers or us responsible for inaccuracies in the catalogues. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your listings).
Restrictions. You may not, and may not attempt to, directly or indirectly: (a) transfer, sublicense, loan, sell, assign, lease, rent, act as a service bureau, distribute or grant rights to any person or entity in the Services of Brands of Nicaragua, S.A., (b) remove, obscure, or alter any notice of any Trademark, or other intellectual property or proprietary right appearing on or contained within the Services on any Brands of Nicaragua, S.A. materials, (c) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in Brands of Nicaragua, S.A.; provided that, the foregoing shall not prevent you from making derivatives of software that is designated by us as “sample code” or is otherwise made available by us on the Site in accordance with separate license terms accompanying such softwares expressly permitting the creation of derivatives, or (d) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Brands of Nicaragua, S.A. materials or as part of the Services. All rights granted to you in this Agreement are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.
Suggestions. If you provide any suggested improvements to the Service Offerings (“Suggestions”) to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
Trademarks. “Brands of Nicaragua, S.A.” its Logo and Design, and other related designs, graphics, logos, page headers, button icons, scripts, and service names that we provide in connection with your use of the Services are trademarks, registered trademarks or not, or trade dress of Brands of Nicaragua, S.A., or its Affiliates in Nicaragua, the U.S.A., and/or other countries (collectively, “Trademarks”). You may use the Trademarks only as expressly permitted herein. All other trademarks not owned by us that appear on the Site in connection with the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
Use of Trademarks. Subject to the terms of this Agreement and provided your Account is in good-standing, we grant you a non-exclusive, non-transferable, non-assignable, non- sublicensable, revocable license to use the Trademarks on your websites, solely in connection with the Services and solely in accordance with our trademark guidelines and such other documentation as we may make available from time to time; provided the names of those domains and subdomains do not contain any of our Trademarks or any other trademark of Brands of Nicaragua, S.A., or its Affiliates, or any confusingly similar trademark (“Trademark License”). We may add, substitute, or remove Trademarks from time to time, and you agree that you will add, substitute, or remove any Trademarks, as we reasonably request, as promptly as reasonably possible. You acknowledge that we and our Affiliates are the sole owners of the Trademarks, and you agree to do nothing inconsistent with that ownership. Your use of the Trademarks, and all goodwill arising out of it, will inure to the sole benefit of us and our Affiliates, and will not create for you any right, title, or interest in the Trademarks. You may not use the Trademarks in connection with any product or service other than the Services, or in any manner that is likely to (a) cause consumer confusion, (b) dilute the value of any Trademark, (c) impair our ownership or rights in the Trademarks, or (d) disparage or discredit us or our Affiliates. You may not modify or alter any Trademark, nor shall you combine any Trademark with any other trademark, word, symbol, letter, or design. You may not use any of our Trademarks or any other trademark of Brands of Nicaragua, S.A., or its Affiliates, or any confusingly similar trademark, in the name of any domain name or subdomain. You must use or display the Trademarks in a manner consistent with the level of quality historically associated with our Trademarks, and you must undertake any steps as we may reasonably request to assist us in monitoring the quality of any of your products or services for which the Trademarks are used. We have the right to monitor your use of the Trademarks and the right to take all action we deem necessary to ensure that the products or services for which you use the Trademarks are not diluting the value of any Trademark. We may revoke this Trademark License at any time in our sole discretion. We and our Affiliates may use your name, logo, service name, or trademarks as designated by you solely as necessary to provide the Services in accordance with our Specifications and other Policies (including without limitation in co-branded web pages used to process orders). We and our Affiliates may use your name or logo on any platform to identify you as a participating merchant.
Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code We respond to notices of alleged copyright infringement as required by the United States Digital Millennium Copyright Act.
Authorization to Contact You
§ To contact you for reasons related to your account or your use of our Services (such as to collect a debt, resolve a dispute, or to otherwise enforce our User Agreement) or as authorized by applicable law.
Updating Your Information. It is your responsibility to ensure that your e-mail address is accurate and remains current. To ensure that we are able to provide you with important Communications, you must update us with any change in your e-mail address, telephone or contact information. The scope of this Consent applies to the e-mail address, telephone and contact information that we currently have on file for you.
Requesting Paper Copies. Communications will not be distributed in paper unless you contact us and request a paper version of a particular document. We reserve the right to charge you a handling fee for any notices that we physically mail to you at your request or due to any type of failure in the process of sending you the information through e-mail.
When you sell goods or services using our Services, you will cooperate with us to meet the 2 business day delivery time frame in which you need to provide us with the product sold through our Services if the delivery si not being handled by the seller, as well as resolve any complaints submitted by the buyer through our Services. You will respond to our inquiries and deliver any information requested by us regarding any disputed sales transactions within 2 business days of our request. If we receive a claim concerning one of your transactions where the item or items were sent by the seller directly, the seller will deliver to us within 2 business days: (a) proof of delivery of the applicable goods, (b) the applicable transaction identification number, (c) a description of the applicable goods, (d) a copy of the receipt provided to the buyer for the applicable transaction, and (e) any other information or documents related to the transaction that we reasonably request.
Customer Service. Unless stated otherwise elsewhere in this Agreement, sellers will be solely responsible for all customer service issues related to their goods or services, order fulfillment, order cancellation by them or the customer, returns, refunds and adjustments, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. You will be solely responsible for all customer service issues relating to any Payment Account, payment, Card processing, debiting or crediting.
If the buyer returns an item because it does not match the listing’s description, the seller generally is responsible for return shipping costs. There will be no refunds on correctly delivered orders. If the product is damaged due to its delivery, please contact us.
§ Delivery Errors and Nonconformities; Product Recalls. Sellers are responsible for any non-delivery, misdelivery, theft or other mistake or act in connection with the fulfillment and delivery of their goods or services. Sellers are also responsible for any non-conformity or defect in, or any public or private recall of, any of their goods or services. Sellers will notify us promptly as soon as they have knowledge of any public or private recalls of their goods or services.
§ Shipping and International Shipping
We ship to all 50 states and US territories. The shipping of the items sold in the Brands of Nicaragua, S.A. e-commerce will be sent through the United States Postal Services (USPS), United Parcel Service (UPS), or any other independent shipping courier or service provider. For USPS deliveries, the cost is calculated by the USPS Application Programming Interface (API) for the USPS shipping calculator. For UPS deliveries, the cost is calculated by the UPS Rating Application Programming Interface for the UPS shipping calculator. For some products the cost of the shipping is included in its price and it will be mentioned in the products description. For those products that the shipping is not included in their price, the USPS or UPS shipping calculator will determine the cost for the shipping. In the event that the products need to be shipped through a national, private or independent shipping service provider or courier, the shipping costs will be invoiced to the buyer who then will proceed to complete the payment for the shipping costs. The order will not be shipped until shipping costs payments are met by the buyer. The cost of the shipping is based on a variety of factors, like but not limited to the products dimensions, weight, packaging used, destination, and prices established by the USPS, UPS, or any other shipping service provider used in the order’s shipping delivery. Brands of Nicaragua, S.A. and its affiliates are not liable for any errors or miscalculations displayed by the shipping calculator. The shipping of the products is the responsibility of the sellers and Brands of Nicaragua, S.A. will assist some of the sellers in the process of shipping their products. Orders are packed and shipped on Monday, Wednesday, and Friday afternoons. For domestic shipping (United States and territories) it will take approximately from 5 to 7 business days (it may be less or more) and for international shipping it will take approximately 3-5 weeks (it may be less or more). For items that are purchased by international buyers through the Brands of Nicaragua, S.A. service, buyers agree to pay all applicable shipping and import charges. Note that international shipments may be subject to taxes, duties and custom fees, which are levied once your package reaches the country of destination and are the responsibility of the recipient. If an item is ineligible for international shipping and cannot be shipped to your country, you’ll be notified after submitting your order. In addition, the customer must be sure that the product can be lawfully imported to the destination country before submitting the order. The customer may benefit from international shipping tracking of the item from the parcel processing facility through delivery.
§ Return of Refunded Merchandise. If you receive a refund for a purchase but you fail to return the product to the seller, we may charge you for the product consistent with the original order. We do not issue refunds if a product or service turns out not to meet your expectations or if the seller does not fulfill its commitments, and we have no obligation to resolve any disputes related to any transaction.
§ Responsibilities under Buyer Dispute. If you are a buyer and you are unhappy with any goods or services that you have purchased using our Services, you should contact Brands of Nicaragua, S.A. and/or the seller directly.
Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Some notification functionalities in Brands of Nicaragua, S.A.’s website and applications may not occur in real time. Such functionality is subject to delays beyond Brands of Nicaragua, S.A.’s control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent company, subsidiaries, affiliates, third parties, officers, directors, agents, parent company and employees) are not liable, and you agree not to hold Brands of Nicaragua, S.A. responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
§ - your use of or your inability to use our Services;
§ - pricing, shipping or other guidance provided by Brands of Nicaragua, S.A.;
§ - delays or disruptions in our Services;
§ - viruses or other malicious software obtained by accessing, or linking to, our Services;
§ - glitches, bugs, errors, or inaccuracies of any kind in our Services;
§ - damage to your hardware device from the use of any Brands of Nicaragua, S.A. Services;
§ - the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
§ - a suspension or other action taken with respect to your account or breach of the Abusing Brands of Nicaragua, S.A. section above;
§ - the duration or manner in which your listings appear in search results as set out in the Listing Conditions section above; or
§ - your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
If you have a dispute with one or more users, you release us (and our affiliates, third parties and subsidiaries, and our and their respective officers, directors, employees, parent companies and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims, which you may know or suspect to exist in your favor at the time of agreeing to this release.
Assignment. You may not assign or transfer any rights, obligations, or privileges that you have under this Agreement without our prior written consent. Subject to the foregoing, this Agreement will be binding on each party’s successors and permitted assigns. Any assignment or transfer in violation of this section will be deemed null and void.
No Waiver. We will not be considered to have waived any of our rights or remedies, or portion of them, unless the waiver is in writing and signed by us. Our failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of this Agreement.
No Agency. Nothing in this Agreement is intended to or creates any type of joint venture, employee-employer, creditor-debtor, escrow, partnership, or any fiduciary relationship between you, us or our Affiliates. Further, except as expressly stated, for the limited purpose of processing payments in accordance with the seller Accounts: (a) neither party shall be deemed to be an agent or representative of the other by virtue of this Agreement, (b) neither party is authorized to, or will attempt to, create or assume any obligation or liability, express or implied, in the name of or otherwise on behalf of the other party, and (c) without limiting the generality of the foregoing, neither party will enter into any contract, agreement, or other commitment, make any warranty or guaranty, or incur any obligation or liability in the name or otherwise on behalf of the other party.
You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of Brands of Nicaragua, S.A.’s Services or your breach of any law or the rights of a third party.
1. Applicable Law
You agree that the laws of the Republic of Nicaragua, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and Brands of Nicaragua, S.A., except as otherwise stated in the User Agreement.
1. Agreement to Arbitrate
You and Brands of Nicaragua, S.A. each agree that any and all disputes or claims that have arisen or may arise between you and Brands of Nicaragua, S.A. relating in any way to or arising out of this or following versions of the User Agreement, your use of or access to Brands of Nicaragua, S.A.’s Services, or any products or services sold, offered, or purchased through Brands of Nicaragua, S.A.’s Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
1. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BRANDS OF NICARAGUA, S.A. AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER BRANDS OF NICARAGUA, S.A. USERS.
2. Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of the User Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or User Agreement is void or voidable.
The arbitration will be conducted by the American Arbitration Association (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, you must send a copy of the completed form to us at the following address to initiate arbitration proceedings: Brands of Nicaragua, S.A., Del hospital militar viejo 2c. Al norte y 1c y 2 casas al oeste, frente al canal 8, casa No. 308
3. Costs of Arbitration
Regardless of the value of the relief, User (agreeing party) will pay all fees for all filing, administration and arbitrator fees associated with arbitration. The arbitration shall be held in a county of mutual accordance between the parties. If said parties cannot agree to a mutual location said location will be determined by Brands of Nicaragua, S.A..
If the value of the relief sought is $10,000 or less, you or Brands of Nicaragua, S.A. may elect to have the arbitration conducted by telephone or based solely on written submissions, which shall be binding between you (user) and Brands of Nicaragua, S.A. subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and /or Brands of Nicaragua, S.A., unless arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the Republic of Nicaragua, including recognized principles of equity, and will honor claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitration involving different Users and Brands of Nicaragua, S.A., but is bound by rulings involving the same Brands of Nicaragua, S.A. User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.
Failure to arbitrate under agreement; petition to the court having jurisdiction for order to compel arbitration; notice and service thereof; will incur the terms and conditions as follows:
Attorneys’ Fees: In the event User brings an action to enforce this Agreement Brands of Nicaragua, S.A. shall be entitled to receive from the User party all reasonable attorneys’ fees and costs incurred including, but not limited to, reasonable attorney’s and paralegals fees, all court costs, and all costs and expenses of investigation and expert witnesses through and including all appeals and post-judgment proceeding up to a maximum of $10,000.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Agreement and its Legal Disputes Section will continue to apply.
5. Opt-Out Procedure
IF YOU ARE A NEW BRANDS OF NICARAGUA, S.A. USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 5 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO BRANDS OF NICARAGUA, S.A., ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, Del hospital militar viejo 2c. Al norte y 1c y 2 casas al oeste, frente al canal 8, casa No. 308.
This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
6. Future Changes to the Agreement to Arbitrate
Notwithstanding any provision in the Agreement stating the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Brands of Nicaragua, S.A. prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to arbitrate that have arisen or may arise between you and Brands of Nicaragua, S.A.. We will notify you of changes to this Agreement to Arbitrate by posting the amended terms on our service at least 5 day before the effective date of the changes and by providing notice through the Brands of Nicaragua, S.A. e-mail. If you do not agree to these amended terms, you may ask to close your account within the 5-day period and you will not be bound by the new terms. Moreover, if we seek to terminate the Agreement to Arbitrate as included in the User Agreement, any such termination shall not be effective until 5 days after the version of the User Agreement not containing the Agreement to Arbitrate is posted in our service, and shall not be effective as to any claim that was filed in a legal proceeding against Brands of Nicaragua, S.A. prior to the effective date of termination.
1. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Brands of Nicaragua, S.A. must be resolved exclusively by a court located in Managua, Nicaragua. You and Brands of Nicaragua, S.A. agree to submit to the personal jurisdiction of the courts located within Managua, Nicaragua for the purpose of litigating all such claims or disputes.
If any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, by providing notice of such assignment in accordance with the Notices Section.
Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on https://brandsofnicaragua.co/terms-of-use. Our right to amend the User Agreement includes the right to modify, add, or remove terms in the User Agreement. Except as stated otherwise in this User Agreement or elsewhere, all amended terms shall automatically be effective right after they are initially posted. Additionally, we will notify you through the Brands of Nicaragua, S.A. e-mail. This User Agreement may not otherwise be amended except through mutual agreement by you and a Brands of Nicaragua, S.A. representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment. The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the Brands of Nicaragua, S.A. site. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.