PLEASE READ THE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OR ACCESSING THIS SITE. Benchmade Knife Company, Inc. (“BENCHMADE,” “we,” “us,” or “our”) maintains this website (the “Site”) as a service to BENCHMADE’s customers, and by using the Site you are agreeing to comply with and be bound by the following terms and conditions of use (this “Agreement”). Please review the following terms and conditions carefully and check them periodically for changes. THESE TERMS AND CONDITIONS OF USE CONTAIN A BINDING ARBITRATION CLAUSE, A WAIVER OF JURY TRIAL, AND A CLASS ACTION WAIVER (See Section 31 below). If you do not agree to the terms and conditions, you should not review information or obtain goods, services or products from the Site.
1. Entire Agreement. This Agreement, and all BENCHMADE policies referenced herein, constitute the entire and only agreement between BENCHMADE and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site, the content, products or services provided by or through the Site, and the subject matter of this Agreement. Any terms and conditions which you include in any purchase order, confirmation of order or other document are expressly excluded. Any variation of the terms and conditions in this Agreement will be binding on BENCHMADE only if agreed in writing by you and an authorized representative of BENCHMADE. This Agreement may be amended by BENCHMADE at any time and from time to time without specific notice to you. The latest version of this Agreement will be posted on the Site, and you should review this Agreement prior to using the Site.
2. Use of the Site. By accessing the Site and/or ordering any product, you are agreeing to not use BENCHMADE’s services or the Site to create any material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that infringes on any patent, trademark, trade secret, copyright or other proprietary rights of any third party.
3. Verifying Your Address. BENCHMADE reserves the right to contact you via email to verify the accuracy of account information (including your correct name and address) that is needed to provide you with the information requested from BENCHMADE.
4. Fraud. By creating an account, you confirm that the information provided is true and that you agree to abide by this Agreement. Please note that your account can be cancelled without notice if it is determined that false or misleading information has been provided, this Agreement has been violated, or other abuses have occurred as determined by BENCHMADE in its sole discretion.
5. Copyrights and Trademarks. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks, registered trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed by Section 9, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. By posting of information or materials on the Site, BENCHMADE does not waive any right in such information and materials.
6. Product Information and Colors. We have made every effort to display as accurately as possible the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate. Most products displayed on the Site are available in select retail stores in the United States and select foreign markets while supplies last. In some cases, merchandise displayed for sale on the Site may not be available in stores. The prices displayed on the Site when shipping to the United States are quoted in U.S. Dollars.
7. Errors, Inaccuracies, and Omissions. Occasionally there may be information on our Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions, delete any information or content appearing on the Site, and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order).
8. Limited Right to Use. The viewing, printing or downloading of any content, graphic, form or document from the Site grants you only a limited, nonexclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works or other use. No part of any content, form or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use (but not for resale or redistribution). You agree not to download, display or use any BENCHMADE content located on the Site for use in any publications, on websites other than the Site for any commercial purpose, in connection with products or services that are not those of BENCHMADE, in any other manner that is likely to cause confusion among consumers, that disparages or desecrates BENCHMADE and/or its licensors, that dilutes the strength of BENCHMADE, or that otherwise infringes BENCHMADE’s intellectual property rights.
9. Protection of Intellectual Property and DMCA Notice. All content on the Site and Services, including but not limited to text, graphics, images, product designs, logos, videos, software, and other materials (collectively, “Content”), is owned by Benchmade Knife Company, Inc. or its licensors and is protected by United States and international copyright, trademark, and other intellectual property laws. Except as expressly permitted by these Terms, you may not reproduce, distribute, modify, display, perform, publish, license, create derivative works from, or otherwise use any Content without prior written permission from Benchmade.
DMCA Notice
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides specific recourse for copyright owners who believe that material appearing on the Services infringes their rights under U.S. copyright law.
If you are a copyright owner, or an agent of a copyright owner, and believe that any content on the Services infringes your copyrights, you may submit a notification pursuant to the DMCA by contacting us at:
Benchmade Knife Company, Inc.
Attn: Legal / Infringement Notice
300 Beavercreek Road
Oregon City, OR 97045
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
Your written notice must include the following information (see 17 U.S.C. § 512(c)(3) for further detail):
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed.
· A description of the copyrighted work that you claim has been infringed.
· A description of the material that you claim is infringing and the location where the material appears on the Services.
· Your address, telephone number, and email address.
· A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
· A statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Benchmade may remove or disable access to the allegedly infringing material and may terminate accounts of repeat infringers in appropriate circumstances.
10. Privacy Policy and Use of Information. Our Privacy Policy, as it may change from time to time, is a part of this Agreement. On certain areas of the Site, you may be given the ability to provide us with personal information, directly or through automated means. BENCHMADE reserves the right, and you authorize BENCHMADE, to collect, use, and disclose your personal information regarding use of the Site in any manner consistent with BENCHMADE’s Privacy Policy (including and except for activities for which we first require your explicit consent to be given through other means). If you disclose to us or our service providers, contractors, or third parties, any personal information relating to other people in connection with the Services, you represent that you have the authority to do so and to permit us to use the information in accordance with the Privacy Policy. Please read our Privacy Policy for more details about our information practices.
11. Credit Card Payments. You represent and warrant that if you are purchasing something from BENCHMADE with a credit card that (i) any credit card information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit card company, and (iii) you will pay the charges incurred by you at the posted prices, including any shipping fees and applicable taxes. BENCHMADE does not accept reseller or sales and use tax exemption certificates for online sales. Payment is required in full upfront before an order for custom products will move into production. We reserve the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product; (ii) limit quantities on orders placed by the same account, on orders placed by the same credit card, and on orders that use the same billing or shipping address; (iii) limit or prohibit orders that, in BENCHMADE’s sole judgment, appear to be placed by dealers, resellers or distributors; (iv) impose conditions on the honoring of any promotional code, or other similar promotion; (v) bar any user from making or completing any or all transaction(s); and (vi) refuse to provide any user with any product. Resellers are defined as a company or an individual that purchases product with the intention of selling them rather than using them.
12. Fraud Prevention and Transaction Verification. Benchmade utilizes third-party fraud-prevention and risk-assessment services. These services may require additional authentication or identity verification in order to complete a purchase. Benchmade reserves the right to cancel or decline any order, with or without notice, if a transaction is determined to present a fraud risk. Customers may dispute a cancelled order or request review by emailing info@benchmade.com.
13. Gift Cards. Gift cards issued by us can be redeemed only for future purchases of merchandise or services at BENCHMADE.com. Applicable taxes are charged when gift cards are redeemed. Upon redeeming your gift card, if your purchase exceeds the amount of the gift card, you will need to pay the balance with an additional method of payment. Upon redemption, any unused balance will remain on the gift card for future purchases. BENCHMADE gift cards do not expire and there are no fees associated with them. BENCHMADE digital gift cards are emailed directly to recipients. BENCHMADE is not responsible for incorrect digital gift card delivery due to entry of an incorrect email address. Gift cards cannot be returned, refunded, transferred to another gift card for value, used for unauthorized advertising, marketing, promotional or commercial purposes, or redeemed for cash or credit (except when required by law) and cannot be replaced or refunded if lost or stolen. Treat the gift card like cash and safeguard it accordingly. With the exception of the BENCHMADE Factory Store, gift cards cannot be redeemed at any BENCHMADE retail store(s) or Authorized Dealer locations. BENCHMADE reserves the right to refuse to accept gift cards that BENCHMADE suspects or believes were obtained fraudulently.
14. Title and Loss. Title to and risk of loss of product passes to you upon delivery of the ordered items to the carrier. Delivery lead times vary. Please note all delivery dates are estimates and are not a guarantee that the product will be delivered on the specified date. BENCHMADE will not be liable for any loss or expenses which you may incur as a result of any delay in the delivery of your order. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
15. Compliance With Applicable Laws. Certain products offered through the Services may be subject to federal, state, or local laws governing their manufacture, sale, possession, or shipment. Benchmade reserves the right to refuse, cancel, or limit any order if fulfillment would violate applicable law or regulatory requirements. Customers are responsible for ensuring that their purchase, possession, and use of products purchased through the Services comply with all applicable laws in their jurisdiction.
16. Automatic Knife Orders and Federal Compliance. Automatic knives are regulated under the Federal Switchblade Act (15 U.S.C. §§ 1241–1245) and other applicable laws. Federal law permits manufacturers to ship automatic knives across state lines to qualified purchasers under certain statutory exemptions, including those applicable to members of the Armed Forces and law enforcement personnel.
To comply with these laws, Benchmade may require customers purchasing automatic knives to complete an Automatic Knife Opening Acknowledgment (“AKOA”) affidavit confirming eligibility under applicable exemptions. Benchmade reserves the right to delay, cancel, or refuse any automatic knife order if required documentation is incomplete, if eligibility cannot be verified, or if shipment would violate applicable law or carrier restrictions. Additional information about these requirements can be found here.
17. Force Majeure. Benchmade shall not be liable for any failure or delay in the performance of its obligations under these Terms if such failure or delay results from events beyond our reasonable control, including but not limited to natural disasters, fires, floods, severe weather, labor disputes, supply chain disruptions, transportation interruptions, carrier delays, governmental actions, public health emergencies, war, terrorism, civil unrest, utility failures, or other events outside Benchmade’s reasonable control.
18. Links to Other Web Sites. The Site contains links to other websites. BENCHMADE is not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by BENCHMADE. Inclusion of any linked website on this Site does not imply approval or endorsement of the linked website by BENCHMADE. If you decide to leave the Site and access these third-party sites, you do so at your own risk.
19. Submissions. All suggestions, ideas, notes, concepts, text prompts, content, artwork, product reviews and other information you may from time to time send to BENCHMADE (collectively, “Submissions”) shall be deemed and shall remain BENCHMADE’s sole property and shall not be subject to any obligation of confidentiality on BENCHMADE’s part. Without limiting the foregoing, BENCHMADE shall be deemed to own all known and hereafter existing rights of every kind and nature regarding the Submissions and shall be entitled to unrestricted use of the Submissions for any purpose, without compensation to the provider of the Submissions.
Designs created using text, images and other tools made available through the Site are in no way the exclusive property of the customers who assemble such designs or use such tools. BENCHMADE retains the right to display such designs or offer them (or variations of such designs) to other customers. Furthermore, BENCHMADE provides no warranty that designs created using our text tools and images will not infringe, or be subject to a claim of infringing, the trademark, or other rights of another party.
BENCHMADE reserves the right to re-purpose submitted or generated artwork for various purposes, including but not limited to: social media channels, customization gallery, website materials, advertisements, and print materials.
20. Custom Products. We reserve the right to reject any orders that we deem, in our sole discretion, to include, but is not limited to, content or language that is illegal, controversial, hateful, obscene, profane or harmful or that could incite violence.
BENCHMADE respects the intellectual property rights of others and we ask that you do the same. By purchasing any custom product on or through the Site, you represent and warrant that your requested design does not violate anyone else’s rights, including copyrights, trademarks, trade secrets, privacy or other rights. BENCHMADE may terminate the account of any customer who infringes, or may infringe, the copyright, trademark or other intellectual property rights of others.
Customization fees apply for all custom products. Please review your customized item carefully prior to submitting your order; customized items may not be cancelled or returned once the order has been submitted. BENCHMADE is not responsible for any errors or mistakes that have been approved.
21. Customer Ratings and Reviews; User Content License. By submitting any customer ratings, reviews, and related content (including, but not limited to, photographs) (collectively, the “User Content”) to BENCHMADE, you represent and warrant that:
· you are at least eighteen (18) years of age,
· the User Content is your original creation, and it was not taken from any website, social media posting, or elsewhere;
· you have all necessary rights and authority to grant the rights granted herein, and that BENCHMADE’s use of the User Content is in accordance with this Agreement and will not violate the rights of any third party;
· you have consent from any and all persons appearing in the User Content to grant the rights described in this Agreement;
· BENCHMADE’s use of the User Content will not violate the rights of any third party, including but not limited to copyright, trademark, patent, trade secret, privacy, publicity, moral, or proprietary rights;
· the User Content is not libelous, defamatory, obscene, pornographic, harassing, hateful, racially or religiously biased or offensive, or otherwise unlawful; and
· you agree that BENCHMADE’s use of the User Content does not and will not require payment to any person or entity and does not require approval or consent by any other person or entity
You further agree and warrant that you shall not submit any User Content:
· That is known by you to be false, inaccurate or misleading;
· That violates any law, statute, ordinance, or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
· For which you were compensated or granted any consideration by any third party;
· That includes any information that references other websites, addresses, email addresses, contact information, or phone numbers; and
· That contains any computer viruses, worms or other potentially damaging computer programs or files.
For any User Content that you submit, you grant BENCHMADE a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, edit, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such User Content and/or incorporate such User Content into any form, medium or technology throughout the world without compensation to you. All User Content that you submit may be used at BENCHMADE’s sole discretion. BENCHMADE may use your User Content on webpages and social media pages operated by BENCHMADE, in promotional e-mails and advertisements, and in any and all marketing, promotional and advertising initiatives, in any and all formats, whether now known or hereafter developed. BENCHMADE reserves the right to change, condense or delete any User Content on the Site that BENCHMADE deems, in its sole discretion, to violate these User Content guidelines, product usage guidelines, or any other provision of this Agreement. BENCHMADE does not guarantee that you will have any recourse through BENCHMADE to edit or delete any User Content you have submitted. Ratings and written comments are generally posted within two to four business days. However, BENCHMADE reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not BENCHMADE, are responsible for the contents of your submission. None of the User Content that you submit shall be subject to any obligation of confidence on the part of BENCHMADE, its agents, subsidiaries, affiliates, partners, service parties, contractors, or third parties and their respective directors, officers and employees. By submitting your email address in connection with your rating and review, you agree that BENCHMADE and its third-party service providers may use your email address to contact you about the status of your review and other administrative purposes.
22. Return Policy. BENCHMADE’s return policy is a part of this Agreement. BENCHMADE does not accept returns of customized products that are not damaged or defective upon receipt. You are responsible for inspecting products promptly upon delivery.
23. Order Modification/Rejection. BENCHMADE reserves the right to reject or modify any order, whether or not such order has been confirmed and/or your credit card has been charged. You will be notified of any rejection or changes to your order at the email address you provided at check out. If your credit card has already been charged and any portion of your order is rejected, BENCHMADE will issue a credit to your credit card account for the amount rejected.
24. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE, SHALL BENCHMADE OR ITS MEMBERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SUBSIDIARIES, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, TRANSMITTING, OR DISTRIBUTING BENCHMADE’S SERVICES AND PRODUCTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BENCHMADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR (E) ANY OTHER MATTER RELATING TO THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
25. Disclaimer. BENCHMADE makes no representations about the reliability of the features of the Site, the BENCHMADE content, or any other Site feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. The Site is controlled, operated and administered by BENCHMADE from within the United States. BENCHMADE makes no representation or warranty that the content available on the Site is appropriate or available for use at other locations outside of the United States. THIS SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE SITE OR ANY INFORMATION OR SOFTWARE THEREIN.
26. Promotions and Promotional Communications. On the Site, you may be able to participate in or sign up for surveys, sweepstakes, contests and other promotions (collectively “Promotions”). If you choose to participate in these Promotions, we may ask you for information such as your name, email address, postal address, telephone number, and other identifiers. We use the information you provide to us in accordance with our Privacy Policy. The Promotions may be governed by rules or terms that are separate from this Agreement. If you participate in any Promotions, please review the applicable rules or terms.
27. Indemnity. You agree to defend, indemnify and hold BENCHMADE and its officers, managers, employees, agents and licensors harmless from all judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorneys’ fees, expert witness fees, and costs of litigation arising out of or based on (a) content you submit, post to or transmit through the Site, (b) your use of the Site, (c) your connection to the Site, (d) your violation of the terms and conditions contained in this Agreement, or (e) your violation of any rights of a third party, including intellectual property rights.
28. Notices and Electronic Communications. Except as explicitly stated otherwise, any notices you send to BENCHMADE shall be sent by mail to Benchmade Knife Company, Inc., Attn: Legal, 300 Beavercreek Rd., Oregon City, OR 97045. In the case of notices BENCHMADE sends to you, you consent to receive notices and other communications by BENCHMADE posting notices on the Site, sending you an email at the email address listed in your account, or mailing a notice to you at your billing address listed in your profile in your account. You agree that all agreements, notices, disclosures and other communications that BENCHMADE provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing. Notice shall be deemed given (i) 24 hours after the notice is posted on the Site or an electronic message is sent, unless the sending party is notified that the message did not reach the recipient, or (ii) in the case of mailing, three days after the date of mailing. You agree that a printed version of these Terms & Conditions and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
29. Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please contact us. You may also contact us by writing to Benchmade Knife Company, Inc., Attn: Legal, 300 Beavercreek Rd., Oregon City, OR 97045. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by phone at (833) 557-2526.
30. Applicable Law and Venue. To the extent permitted by law, this Agreement shall be governed by and interpreted in all respects in accordance with the substantive laws of the state of Oregon, U.S.A., without regard to its choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
To the extent permitted by law, the state and federal courts located in Oregon, shall have exclusive jurisdiction over any action or proceedings between you and BENCHMADE that are not subject to arbitration or that may be brought in small claims court and over any action seeking interim or preliminary relief. Each of you and BENCHMADE (i) voluntarily and irrevocably consents and (without waiving service of process) submits to personal jurisdiction and venue of the courts located in Oregon, that have subject matter jurisdiction, and (ii) waives all objections to venue and any claim that you or it is not personally subject to such jurisdiction or to seek a change of venue, and agrees not to bring any such action or proceeding in any other form.
31. Mandatory Pre-Dispute Resolution Process.
(a) To the maximum extent permitted by law, you and BENCHMADE waive the right to bring any claim directly or indirectly arising out of or relating to the Agreement (including all sections of this Agreement) or the Site (including the purchase of BENCHMADE products via BENCHMADE.com) in any forum unless the party bringing the claim provides the other party with written notice of the dispute within one (1) year of its occurrence by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail. BENCHMADE’s address for notice is: Attn: Legal Department – Notice of Dispute, Benchmade Knife Company Inc, 300 Beavercreek Rd., Oregon City, OR 97045. The written notice (“Notice of Dispute”) must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought.
(b) The Notice of Dispute must be personally signed by you (if you are initiating the Notice of Dispute) or by a BENCHMADE representative (if we are initiating the Notice of Dispute). BENCHMADE must send any such Notice of Dispute to you at the email address that BENCHMADE has on file for you.
(c) BENCHMADE and you will attempt to resolve the dispute through reasonable, good-faith consultation, cooperation, and good-faith negotiation within sixty (60) days from the date that the Notice of Dispute is received (or a longer period, if agreed to by the parties). Neither you nor BENCHMADE may initiate an arbitration or small claims proceeding before the conclusion of the sixty-day period from the time the Notice of Dispute is received, or otherwise absent full compliance with the process described in this Section 32 (collectively, the “Mandatory Pre-dispute Resolution Process”). You agree that you or BENCHMADE may seek any interim or preliminary relief from a court of competent jurisdiction in Oregon, as necessary to protect their rights pending completion of the Mandatory Pre-Dispute Resolution Process.
(d) If the sufficiency of a Notice of Dispute or compliance with this Mandatory Pre-dispute Resolution Process is at issue, it may be decided by a court of competent jurisdiction in Oregon, at either party’s election, and any formal dispute resolution proceeding will be stayed. Such court has the authority to enforce this condition precedent to an arbitration proceeding, which includes the power to enjoin the filing or prosecution of a demand for arbitration. Notwithstanding the foregoing, either party retains the right to raise non‑compliance with this condition precedent and seek related damages in arbitration. Any applicable limitations period (including statutes of limitations) and any filing fee deadlines will be tolled while you and BENCHMADE engage in the Mandatory Pre-dispute Resolution Process.
32. Class Action Waiver. ANY PROCEEDINGS TO RESOLVE, ARBITRATE, OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR BENCHMADE WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
33. Small Claims Court. Any dispute directly or indirectly arising out of or relating to the Agreement or the Site (including the purchase of BENCHMADE products via BENCHMADE.com) that falls within the jurisdictional scope and limits of the small claims court where you reside may be brought in that court on an individual basis. Such disputes must remain in small claims court and may not be removed or appealed to a court of general jurisdiction.
The party initiating the small claims court proceeding shall submit a certification of compliance with the Mandatory Pre-Dispute Resolution Process set forth in Section 32 to that court. The certification shall be personally signed by that party (and counsel, if represented).
34. Arbitration Agreement. You agree that any disputes directly or indirectly arising out of or relating to the Agreement (including all sections of this Agreement) or the Site (including the purchase of BENCHMADE products via BENCHMADE.com) that cannot be resolved through the Mandatory Pre‑dispute Resolution Process in Section 32 shall be resolved exclusively by final and binding arbitration, and administered by National Arbitration and Mediation (“NAM”). Except as modified by this Agreement, NAM shall administer the arbitration in accordance with the Comprehensive Dispute Resolution Rules and Procedures and/or the Mass Filing Supplementary Dispute Resolution Rules and Procedures, as applicable (the “NAM Rules”). The NAM Rules and fee information are available at www.namadr.com. If NAM is unable or unwilling to administer the arbitration consistent with the terms of this Agreement, the parties shall agree on an alternate administrator that will do so. If the parties cannot agree, they shall petition a court of competent jurisdiction in Oregon, to appoint an alternate administrator that will do so.
The demand for arbitration must be personally signed by the party initiating arbitration (and their counsel, if represented). By signing the demand for arbitration, a party (and their counsel, if represented) certifies that they have complied with (i) the Mandatory Pre-Dispute Resolution Process in Section 32 and (ii) all of the requirements of Federal Rule of Civil Procedure 11(b), including that the claims and relief sought are neither frivolous nor brought for an improper purpose. The arbitrator is authorized to award any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or applicable federal or state law against all appropriate persons (including counsel) as a court would.
Any required arbitration hearing will be held in Oregon, or a location that is reasonably convenient for both parties taking into account the location of the parties and relevant witnesses, as well as the parties’ and witnesses’ ability to travel.
Any award in any arbitration initiated hereunder shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator(s) shall have no authority to award punitive, consequential or other damages not measured by the prevailing party’s actual damages in any arbitration initiated under this section, except as may be required by statute. To the extent a party seeks injunctive relief, it may seek such relief from a court of competent jurisdiction in Oregon.
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 32 within thirty (30) days after the date that you first agree to this Agreement by sending a letter to Attn: Legal Department – Arbitration Opt-Out, Benchmade Knife Company Inc, 300 Beavercreek Rd., Oregon City, OR 97045, that specifies: your full legal name, your email address (if applicable, the email address associated with your use of the Site), and a statement that you wish to opt out of the provisions of this Section 32 (“Opt-Out Notice”). Once BENCHMADE receives your Opt-Out Notice, this Section 32 will be void. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice. Notwithstanding anything to the contrary, this Agreement does not prevent you or BENCHMADE from participating in a mass settlement of claims, including from participating in a class-action settlement.
If BENCHMADE makes any future changes to the arbitration provisions in this Section 32 (other than a change to the notice address), you may reject any such change by sending a letter within 30 days after the date of such change to Attn: Legal Department – Arbitration Change Opt-Out, Benchmade Knife Company Inc, 300 Beavercreek Rd., Oregon City, OR 97045, that specifies: your full legal name, your email address (if applicable, the email address associated with your use of the Site), and a statement that you wish to opt out of such change to the provisions of this Section 32 (“Change Opt-Out Notice”). Once BENCHMADE receives your Change Opt‑Out Notice, any such change to this Section 32 will be void as to you, but you will still be bound by the prior arbitration agreement that you agreed to. For clarity, please note that this is not an opt-out of arbitration altogether.
The terms of the arbitration provisions contained in this Section 32 will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of BENCHMADE to the extent that any such claims arise out of your access to or use of the Site or the provisions of content or technology on or through the Site.
BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL. DO NOT USE THIS SITE IF YOU DO NOT AGREE TO THE FOREGOING ARBITRATION PROVISIONS.
35. Procedures for Mass Arbitration Filings.
a) If your claim is one of twenty-five (25) or more similar claims intended to be asserted against BENCHMADE by the same or coordinated counsel or are otherwise coordinated, consistent with the definition of Mass Filing set forth in the NAM Rules, you and we understand and agree that these procedures for mass arbitration filings will apply and the resolution of your dispute might be delayed. The parties agree that throughout this process, their counsel will meet and confer to discuss modifications to these procedures based on the particular needs of the mass filing.
· Stage One. Counsel for the claimants and counsel for BENCHMADE will each select twenty-five (25) claims per side to be filed and to proceed in individual arbitrations as part of the first staged process (“Stage One”). Absent agreement of the parties, no more than five (5) Stage One cases will be assigned to a single arbitrator. If there are fewer than fifty (50) claims, all will be filed in individual arbitrations. Any remaining claims will not be filed or deemed filed in arbitration, nor will any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties will engage in a global mediation session of all remaining claims with a retired federal or state court judge to be jointly selected by counsel for the parties, and BENCHMADE will pay the mediation fee.
· Stage Two. If the remaining claims are not resolved at this time, counsel for the claimants and counsel for BENCHMADE will again each select twenty-five (25) claims per side to be filed and to proceed in individual arbitrations as part of a second staged process (“Stage Two”), subject to any procedural changes the parties agree to in writing following mediation or through continuing, good-faith discussions. Absent agreement of the parties, no more than five (5) Stage Two cases will be assigned to a single arbitrator. If there are fewer than fifty (50) claims, all will be filed in individual arbitrations. Any remaining claims will not be filed or deemed filed in arbitration, nor will any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties will engage in a global mediation session of all remaining claims with a retired federal or state court judge to be jointly selected by counsel for the parties, and BENCHMADE will pay the mediation fee.