Terms of Service

 

Terms of Service

Last Updated Nov 23, 2018

EXCELRESCUE.NET (“EXCEL RESCUE LIMITED”, “WE” OR “US”) USER TERMS OF SERVICE

The terms and conditions set forth below (the "terms") govern your use of this site on the world wide web. These terms are a legal contract between you and Excel Rescue Limited and govern your access to, and use of, Excel Rescue Limited website located at the URL: https://excelrescue.net as well as all associated sites linked to http://ExcelRescue.net by Excel Rescue Limited, its subsidiaries and affiliated companies, together with the services available through this site (the “site”). If you do not agree with any of these terms, do not access or otherwise use this site, any services available through this site or any information contained on this site. Your use of this site shall be deemed to be your agreement to abide by each of the terms set forth below. If you are using this site for your company’s use, you represent that you are an authorized representative who has the authority to legally bind your company to these terms and to grant Excel Rescue Limited the necessary permission to make changes to your Projects. Excel Rescue Limited may make changes to the content and services offered on this site at any time. Excel Rescue Limited may also change, modify or add or remove provisions of these terms at any time by posting updated terms of use on this site. If any change, modification, additional provision or removal of a provision is unacceptable to you, you shall cease using this site. If you instead continue to use this site, you will be conclusively deemed to have accepted the change.

Note: this agreement contains a dispute resolution and arbitration provision, including class action waiver that affects your rights under this agreement and with respect to disputes you may have with Excel Rescue Limited. You may opt out of the binding individual arbitration and class action waiver as provided below.

1. HOW OUR SERVICES WORK

Excel Rescue Limited offers a Marketplace for creating Microsoft Excel and related solutions. We connect website and business owners (“Users”) who need solutions to their Excel tasks, with Excel developers (“Developers”) who are able to complete these tasks for Users. For example, our Site can connect Users with an Excel Developer who can, for example, code VBA, write a simple macro, write a function or formula, graph, chart, or data visualization, dashboard, scorecard, KPI or executive summary, create or modify a template, power query, power pivot, or recover a corrupt file.

Users can submit a request for Excel Tasks – herein called a “Project” – with us and request through e-mail or our web service. A project length will be scoped at Excel Rescue Limited’s discretion.

So that a Developer may provide a solution for your Project as requested, and/or complete your Project, you must supply us with the appropriate files and login credentials (if necessary) for your Project. You must have the authority to authorize Excel Rescue Limited and/or Developers to access your Project in order to perform the requested services, or you may not submit a Project request.

Excel Rescue Limited reserves the right to reject any job that it deems out of scope for our service, this includes but is not limited to, issues with communicating the job.

2. WEBSITE SECURITY

As noted above, Users must supply us with the appropriate files and login credentials (if neccesary) for their Project and permit Developers temporary access in order to complete their Project(s). We will not share your files or login credentials with anyone.

At all times, you are responsible for having adequate security in place on your computer and Project(s). You agree to immediately notify Excel Rescue Limited of any unauthorized use, or suspected unauthorized use of your information or any other breach of security. We are not liable to any User for any loss or damage arising from User's failure to comply with the above requirements, including your failure to have in place adequate computer security, or for any other User website vulnerabilities.

3. BACKUPS

All Users are required to ensure that they maintain backups of their files throughout development. Excel Rescue Limited makes an honest effort to duplicate and maintain backups of each User’s Project(s), however, it is at the User's own risk to delete them.

Excel Rescue Limited cannot and will not be liable for any loss of data to any User who fails to comply with this provision.

4. PROJECT COMPLETION TIMES

Excel Rescue Limited does not guarantee Project completion time; any estimates provided concerning the completion of a project are provided as a courtesy and are not binding.

Certain Projects may be eligible to be submitted as a "Tiny Tasks". Projects that are submitted as Tiny Tasks will not be charged an additional fee.

Eligibility for the Excel Rescue Limited Tiny Task service is at the discretion of ExcelRescue.net.

Excel Rescue Limited will provide a delivery time for all Projects and will do its best to ensure that the delivery time is met. However, Excel Rescue Limited cannot guarantee that a Project will be completed within the stated delivery time. If a Project is not completed within the stated delivery time, User will not be entitled to a refund of the Project fee simply because the Project was not completed within the stated delivery time.

5. ELIGIBILITY

By using the Site, you represent, acknowledge and agree that you are at least 18 years of age. Further, you represent, acknowledge and agree that: (a) all information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information and keep such information up-to-date; and (c) your use of the services offered through this Site do not violate any applicable law or regulation.

Excel Rescue Limited may terminate these Terms and your use of the Site without notice if Excel Rescue Limited, in its sole discretion, believes that you are under the age of 18, have provided inaccurate or incomplete registration information, or are otherwise ineligible to use our Site and services.

Additional eligibility requirements apply to Developers, as stated in the "Additional Developer Terms" section below.

6. GENERAL USE RESTRICTIONS

Excel Rescue Limited provides content and services through the Site. Certain information, documents, products and services provided on and through this Site, including content, logos, graphics and images (together, the “Site Materials”) that are not Submissions (as defined below) are provided to you by Excel Rescue Limited and are the copyrighted and/or trademarked work of Excel Rescue Limited or Excel Rescue Limited’s contributors.

Excel Rescue Limited grants you to display and to make one copy of the Site Materials and to use the services and this Site. You acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site Materials in any manner.

Except as stated herein, you acknowledge that you have no right, title or interest in or to this Site or any Site Materials.

7. USING THE SITE AND THE SERVICES ON THE SITE

You can simply view the Site, and not use any services on the Site or participate in any interactive programs on the Site. You need not register with Excel Rescue Limited to simply visit and view the Site. However, in order to access certain password-restricted areas of the Site and to use certain services (such as to retrieve a Project quote or place an order) and Site Materials, you must register with Excel Rescue Limited for an account and receive a password.

8. PASSWORD RESTRICTED AREAS OF THIS SITE

Users. Users that desire to submit a Project to Excel Rescue Limited must submit an email address and choose a password. Users may also provide additional optional information, such as a website URL and a brief on what work they want performed on their site; this information is not required to register for an account but may be helpful to Excel Rescue Limited in providing you with a more customized experience when using the Site or its services. Once a User has submitted his or her account registration information, an Excel Rescue Limited administrator shall have the right to approve or reject the Project request in the Excel Rescue Limited administrator’s sole discretion.

Developers. Subject to the Additional Developer Terms below, Developers may apply to join Excel Rescue Limited. Excel Rescue Limited Management will review the Developer applications, and may, in its sole discretion, approve or deny any Developer application. Once approved, a Developer will have access to the Excel Rescue marketplace, where it may choose the Projects it wishes to work on.

General. You are responsible to not do anything else that might jeopardize the security of your spreadsheet. You agree to notify ExcelRescue if your spreadsheet is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your spreadsheet on this Site or if you know of any other breach of security in relation to this Site. By using this Site, you represent and warrant that all the information that you provide when submitting a task and otherwise through the Site is accurate, complete and up to date.

9. PURCHASES

Once a User submits a Project, Excel Rescue Limited will provide that User with a quote, estimating the cost of completing that Project, based on the number of Tweaks involved; if you accept a Project quote, Excel Rescue Limited will charge you for the Project and will assign your Project to one or more Developers for completion. By submitting a Project and accepting an estimate you agree to pay all fees or charges, including any taxes, to your account for that Project, based on Excel Rescue Limited’s Project quote. Please note that, while we attempt to provide accurate quotes at the outset of a Project (based on the number of Tweaks a Project involves or the size of the Project), additional information or requests regarding the scope of the Project may necessitate adding additional Tweaks to a Project, which may increase the estimated price. Excel Rescue Limited will inform Users of any increases to the Project quote; if you decline to pay for the increased cost, Excel Rescue Limited, in its discretion, may (i) complete (or instruct the Developer to complete) only the Project and Tweaks from the original quote; (ii) cancel the Project and refund your money, and, in its discretion, rollback (or instruct the Developer to rollback) any work already completed on the Project, restoring your spreadsheet to its prior state (i.e., the state of the spreadsheet prior to the initiation of the Project). If you do not pay on time or if Excel Rescue Limited cannot charge your credit card designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms. If you have a balance due on a Project, you agree that Excel Rescue Limited may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

10. REFUNDS AND CANCELLATIONS

Excel Rescue Limited offers a 100% satisfaction guarantee. Users who are not satisfied with the outcome of a Project (the "Outcome"), must notify Excel Rescue Limited at https://excelrescue.net/contact, within the timeframe set forth below.

Once a Project has been marked as "Built" by the assigned Developer(s), the User has forty-eight (48) hours to review the Project, and to mark it as "Complete," or to notify Excel Rescue Limited that it is not satisfied with the Project Outcome. If a User does not take any action within those forty-eight (48) hours, then the Project will automatically be marked as Complete. A User then has seven (7) days from the date a Project has been marked "Complete" to notify Excel Rescue Limited that it is not satisfied with the outcome of the Project. Excel Rescue Limited will not provide User any refund of the Project fee, if the User does not notify Excel Rescue Limited at https://excelrescue.net/contact or the Developer’s email address that it is not satisfied with the Project Outcome.

If a User notifies Excel Rescue Limited that it is not satisfied with the Project Outcome, in accordance with the timeframe set forth above, Excel Rescue Limited will either reopen the Project and rectify the situation, or will issue the User a full refund at the discretion of https://excelrescue.net.

Once you have notified us that you are not satisfied with the Project Outcome, Excel Rescue Limited will take steps to address your complaints about the Project Outcome, including by asking the Developer who completed the work, or in our discretion a different Developer, to address your complaints regarding the Project Outcome. However, if after our attempts to address your complaints, you are still not satisfied with the Project Outcome, Excel Rescue Limited will issue you a full refund, and may, at its discretion, discontinue any current or future Project(s) for the User.

11. ELECTRONIC COMMUNICATIONS

By using the Site and/or the services provided on or through the Site, you consent to receiving electronic communications from Excel Rescue Limited. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or services provided on or through the Site. These electronic communications are part of your relationship with Excel Rescue Limited. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

12. LINKS TO THIRD PARTY SITES

This Site may be linked to other web sites that are not Excel Rescue Limited sites (collectively, “Third Party Sites”). Certain areas of the Site may allow you to interact and/or conduct transactions with such Third Party Sites, and, if applicable, allow you to configure your privacy settings in your Third Party Site account to permit your activities on this Site to be shared with your contacts in your Third Party Site account and, in certain situations, you may be transferred to a Third Party Site through a link but it may appear that you are still on this Site. In any case, you acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Excel Rescue Limited, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Web Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, users, guides and privacy policies of any of Third Party Sites. Excel Rescue Limited is providing links to the Third Party Sites to you as a convenience, and Excel Rescue Limited does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites. You agree that Excel Rescue Limited will not, under any circumstances, be responsible or liable, directly or indirectly, for any goods, services, information, resources and/or content available on or through any third party web sites and/or third-party dealings or communications, or for any harm related thereto, or for any damages or loss caused or alleged to be caused by or in connection with your use or reliance on the content or business practices of any third party.

13. SUBMISSIONS

Users. If you are a User, you acknowledge that you are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds, software and other content or material that you, either through yourself or a third party associated with your account, submit, upload, post or otherwise make available on or through your website (each a “Submission”), and that you, and not Excel Rescue Limited, have full responsibility for each such Submission, including its legality, reliability, appropriateness, and trademark and copyright ownership (and the burden of determining whether any material is protected by any such right or is otherwise illegal or inappropriate is on you). You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Submission made available on or through your Site. You are expressly acknowledge that you are fully responsible for any Submission that you make or cause to be made available on or through your Site, in connection with any Project.

Developers. You agree that you will not upload, post or otherwise make available through a User's file or website any material that you know, or that you reasonably should know (i) would violate any third party's copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right, or (ii) is otherwise illegal or unlawful.

14. PROJECT CONFIDENTIALITY

All customer supplied files and information are treated as confidential by default, unless otherwise directed by the User or is known to already be in the public domain. The basis of mutual non-disclosure is detailed in the Mutual Non Disclosure Agreement. By working with Excel Rescue Limited you agree the abide to the terms of the Mutual Non-Disclosure Agreement.

15. UNAUTHORIZED ACTIVITIES

When using this Site and/or the services, you agree not to, without limitation:

  • Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
  • Use racially, ethnically, or otherwise offensive language.
  • Discuss or incite illegal activity.
  • Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
  • Post anything that exploits children or minors or that depicts cruelty to animals.
  • Post any copyrighted or trademarked materials without the express permission from the owner.
  • Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
  • Use any robot, spider, scraper or other automated means to access the Site.
  • Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
  • Alter the opinions or comments posted by others on this Site.
  • Take any action that may otherwise harm, disrupt or overburden the Site, or violate these Terms.

This list of prohibitions provides examples and is not complete or exclusive. Excel Rescue Limited reserves the right to terminate your access to your account, your ability to post to this Site or use the services), with or without cause and with or without notice, for any reason or no reason, or for any action that Excel Rescue Limited determines is inappropriate or disruptive to this Site or services available through the Site, or to any User or Developer. Excel Rescue Limited may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Excel Rescue Limited’s discretion, Excel Rescue Limited will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.

Submissions and unauthorized use of any Site Materials contained on this Site may violate certain laws and regulations.

You agree to indemnify and hold Excel Rescue Limited and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) Excel Rescue Limited or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or the use of this Site and the services available through the Site by any person using your Excel Rescue Limited user name and/or password violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.

16. PROPRIETARY RIGHTS

Excel Rescue Limited is a trademark of Excel Rescue Limited in New Zealand. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Excel Rescue Limited, ™ Excel Rescue Limited. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

17. NO AGENCY RELATIONSHIP

Nothing in these Terms creates a relationship of agent and principal, partners, joint venturers or employer–employee between you and Excel Rescue Limited, or between any Developer or User, and no act or obligation of either party will in any way bind the other.

18. DISCLAIMER OF WARRANTIES

Your use of this Site and/or the services is at your own risk. Neither the Site Materials nor Submissions, nor any Project information, have been verified or authenticated in whole or in part by Excel Rescue Limited, and they may include inaccuracies or typographical or other errors. Excel Rescue Limited does not warrant the accuracy or timeliness of the Site Materials or Submissions. Excel Rescue Limited has no liability for any errors or omissions in the Site Materials and/or Submissions, whether provided by Excel Rescue Limited or our licensors.

Excel Rescue Limited, for itself and its subsidiaries, affiliates, licensors, agents, representatives, third-party services providers, and any of the foregoing entities' respective officers, directors, owners, employees, agents, partners, contractors, representatives, successors and assigns (each an “ Excel Rescue Limited party” and collectively, the “Excel Rescue Limited parties”), makes no express, implied or statutory representations, warranties, or guarantees in connection with this site, the services, any site materials or submissions, relating to the quality, suitability, truth, accuracy or completeness of any information or material contained or presented on this site, including without limitation the site materials or submissions of other users of this site. Unless otherwise explicitly stated, to the maximum extent permitted by applicable law, this site, the services, site materials submissions, and any information or material contained or presented on this site is provided to you on an “as is,” “as available” and “where-is” basis with no warranty of implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights. Excel Rescue Limited does not provide any warranties against viruses, spyware or malware that may be installed on your computer.

The sole remedy for users who are not satisfied with the outcome of a project is to obtain a refund for that project, subject to the conditions of the refund section above.

19. LIMITATION OF LIABILITY

No Excel Rescue Limited party shall be liable to you for any damages resulting from your displaying, copying, or downloading any site materials or submissions to or from this site. In no event shall Excel Rescue Limited be liable to you for any indirect, extraordinary, exemplary, punitive, special, incidental, or consequential damages (including loss of data, revenue, profits, use or other economic advantage) however arising, even if Excel Rescue Limited knows there is a possibility of such damage.

If, notwithstanding the foregoing, an Excel Rescue Limited party is found to be liable to you or any other person for any damage or loss arising out of or relating to these terms or your use of the site, or any content or services therein, the Excel Rescue Limited parties’ total cumulative liability shall in no event exceed the greater of: (a) the amount you paid Excel Rescue Limited for your use of the site, service and any content therein; or (b) the sum of one hundred (100) us dollars.

Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply to you. In such event, Excel Rescue Limited’s liability for such damages with respect to the Site and Service will be limited to the greatest extent permitted by applicable law in such jurisdiction.

20. INDEMNITY

You agree to indemnify, defend and hold harmless, Excel Rescue Limited, its affiliates and service providers, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers to the Site or Service from and against any and all claims or liability, including costs and attorneys’ fees, arising from or in connection with your violation of these Terms and your use of the Site or services or any Projects. Excel Rescue Limited reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with Excel Rescue Limited in asserting any available defenses.

21. LOCAL LAWS; EXPORT CONTROL

You shall obey all federal, state, and local laws, regulations and rules that apply to your activities when you use the Site or services. Excel Rescue Limited reserves the right to terminate your account and to prevent your use of the Site if your account is used to engage in illegal activity or to violate the Terms.

To use our services, you must not be (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes, including without limitation Iran, North Korea, Sudan and Syria; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.

22. FEEDBACK

If you send or transmit any communications, comments, questions, suggestions, or related materials to Excel Rescue Limited, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any services offered through the Site or Site Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Excel Rescue Limited is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Excel Rescue Limited is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

23. TERMINATION

If you violate these Terms, Excel Rescue Limited may terminate and/or suspend your access to the Site without notice. Excel Rescue Limited prefers to advise you of your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Excel Rescue Limited, may result in immediate termination of your access to this Site and the services available through the Site.

Excel Rescue Limited may also in its sole discretion and at any time discontinue providing the Site, the Site Materials and the services available through the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site, the Site Materials and the services available through the Site, under any provision of the Terms, may be effected without prior notice to you, and acknowledge and agree that Excel Rescue Limited may bar any further access to the Site, the Site Materials and the services available through the Site,. Further, you agree that Excel Rescue Limited shall not be liable to you or any third-party for any termination of access to the Site, the Site Materials and the services available through the Site.

24. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER

Please read this carefully. It affects your rights.

Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at https://excelrescue.net/contact. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Excel Rescue Limited. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this Provision carefully. It provides that all Disputes between you and Excel Rescue Limited shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).

For the purpose of this Provision, “Excel Rescue Limited” means Excel Rescue Limited and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Excel Rescue Limited regarding any aspect of your relationship with Excel Rescue Limited, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Excel Rescue Limited’s licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.

We each agree that, except as provided below, any and all disputes, as defined above, whether presently in existence or based on acts or omissions in the past or in the future, will be resolved exclusively and finally by binding arbitration rather than in court in accordance with this provision.

PRE-ARBITRATION CLAIM RESOLUTION

For all Disputes, whether pursued in court or arbitration, you must first give Excel Rescue Limited an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Excel Rescue Limited, 700-1350 Burrard St, Vancouver, Canada V6Z0C2. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Excel Rescue Limited does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.

EXCLUSIONS FROM ARBITRATION/RIGHT TO OPT OUT

Notwithstanding the above, you or Excel Rescue Limited may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) you opt-out of these arbitration procedures within 30 days from the date that you first consent to this agreement (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Excel Rescue Limited, 700-1350 Burrard St, Vancouver, Canada V6Z0C2. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Excel Rescue Limited through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Excel Rescue Limited. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration (or small claims court as designated above).

ARBITRATION PROCEDURES

If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or Excel Rescue Limited may initiate arbitration proceedings. The Arbitrator's and Mediator's Institute of New Zealand (“AMINZ”), https://www.aminz.org.nz/ will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or Excel Rescue Limited may initiate arbitration in New Zealand.

Payment of Arbitration Fees and Costs – Excel Rescue Limited will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Excel Rescue Limited as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

CLASS ACTION WAIVER

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Excel Rescue Limited specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

JURY WAIVER

You understand and agree that by entering into this Agreement you and Excel Rescue Limited are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Excel Rescue Limited might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.

SEVERABILITY

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.

CONTINUATION

This Provision shall survive the termination of your service with Excel Rescue Limited or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Excel Rescue Limited makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Excel Rescue Limited to adhere to the language in this Provision if a dispute between us arises.

25. LIMITED TIME TO BRING CLAIM

Where permitted by law, you and Excel Rescue Limited agree that any cause of action arising out of or related to the Site, and the services available through the Site, or any Site Materials must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

26. GENERAL

New Zealand law and the New Zealand Arbitration Act 1996, without regard to the choice or conflicts of law provisions, will govern these Terms. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for disputes subject to arbitration as described above, you agree to submit to the personal and exclusive jurisdiction of the courts located in New Zealand for resolution of any disputes arising out of or relating to these Terms or your use of the Site, including the services available through the Site. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Excel Rescue Limited’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Excel Rescue Limited and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Excel Rescue Limited about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

27. CONTACT US

If you have any questions about these Terms or otherwise need to contact Excel Rescue Limited for any reason, you can reach us at https://excelrescue.net/contact.

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