Effective Date: 29 Nov, 2021
These Terms constitute a binding agreement between you and Probellum USA Corporation (“Probellum,” “we,” “us,” or “our”), governing your use of Probellum.com, and any other website, feature, or other service offered by us that posts a link to or otherwise provides these Terms (collectively, the “Services”).
- Intellectual Property
Probellum, or its subsidiaries, affiliates, licensors, or suppliers, own all rights, title, and interest in and to the Services (and all past, present, and future versions), and all copyrights, trademarks, patents, trade secrets, and other intellectual property rights embodied therein, whether or not applied for or registered, including but not limited to the following: names, logos, text, graphics or other artwork, icons, photos, products, digital downloads, sound recordings, audiovisual materials or effects, titles, themes, objects, animations, musical compositions, moral rights, documentation, data compilations, computer code or software, features, “look and feel,” and functionality of the Services, and any compilation of the foregoing (collectively, “Probellum Content”). The Probellum Content is protected by United States and international laws.
You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into another website, app, or other service; or in any way exploit any of the Probellum Content, in whole or in part, except as set forth in these Terms, without our prior, written, and specific permission.
- Our License to You
Subject to your compliance with these Terms, Probellum grants to you a limited, revocable, non-exclusive, non-transferrable license to engage in the following activities for non-commercial purposes only:
- To browse, access, and view the Services and the Probellum Content therein that is available to the public;
- To link to the Services, provided, however, that your website or any third party websites that link to the Services: (a) must not frame or create a browser or border environment around any of Probellum Content or otherwise mirror any part of the Services; (b) must not imply that Probellum is endorsing or sponsoring it or its products or services, unless Probellum has given it prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in Probellum’s sole opinion, harm Probellum or its Services; (d) must not use any Probellum trademarks without the prior written permission from Probellum; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Probellum’s sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Services, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Probellum reserves the right to prohibit linking to the Services for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
The foregoing license does not include any right to modify, publish, participate in the transfer or sale of, reproduction, or creation of derivative works from the Probellum Content or the Services, except as and only to the extent expressly stated above.
You also agree that you will not (or aid or abet any third party to) engage or attempt to engage in any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services; using manual or automated software or other means to scrape, crawl, spider, or similarly access any portion of the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); introducing or sending viruses, worms, spyware, malware, or any other kind of harmful code into or through the Services; interfering or attempting to interfere with the proper functioning of or use by others of the Services, including by means of overloading, flooding, spamming, mail bombing, or crashing the Services; or disabling, bypassing, modifying, defeating, violating, removing, impairing, circumventing, or otherwise interfering with digital rights-management technology or other features or technology that limits or prevents use of the Services or the Probellum Content therein.
- No Unsolicited Materials
It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, Probellum does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. You agree that any such materials or ideas transmitted to Probellum are licensed by you to Probellum without any restrictions on use or obligation to use such materials or ideas, and that you will be entitled to no compensation for such materials or ideas regardless of the extent to which Probellum may use such materials or ideas.
- Copyright and Other Intellectual Property Infringement Claims
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), Probellum has a designated agent for receiving notices of copyright infringement, and we follow the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- An identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- An identification of the material that you claim is infringing or to be the subject of infringing activity, together with information reasonably sufficient for us to locate the material on the Services;
- Information reasonably sufficient to permit us to contact the complaining party;
- A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please send this information to our Copyright Agent:
Probellum USA Corporation
8 The Green, Suite 5378
Dover, DE 19901
If you believe that any content on the Services violates your exclusive rights other than copyrights, please provide us at least the following information: (a) your physical or electronic signature; (b) identification of the material that you claim is infringing your exclusive rights and information reasonably sufficient to permit us to locate the material; (c) an explanation of the exclusive rights that you own/have and why the you believe the content infringes those rights, sufficient for us to evaluate the complaint; and (d) accurate contact information for you. Please send your complaint to: firstname.lastname@example.org.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter. We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
- Sweepstakes, Contests, and Promotions
Any sweepstakes, contests or other promotions (any, a “Promotion”) that may be offered via the Services may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of user generated content, and disclosures about how your personal information may be used. It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the identified sponsor(s).
- Third Party Links, Services, and Content
There may be links from the Services, or communications you receive from the Services, to third party sites or services. The Services may also include third party content that we do not control, maintain, or endorse. Accessing third party sites, services, or content may require you to leave the Services. We do not control those third party sites, services, or content and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party sites, services, or content, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising therefrom.
- International Users
Some of the Services are accessible from countries around the world and may contain references to Services that are not available in your country. These references do not imply that we intend to announce such Services in your country. The Services are controlled and offered by us from our facilities in the United States. We make no representations that the Services are appropriate or available for use in other countries. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
Probellum does not have an obligation to monitor users’ activities on or use of the Services. However, Probellum reserves the right to do so for any purpose at any time, with or without notice or liability to you. By using the Services, you irrevocably consent to such investigations.
- Suspension and Termination
We reserve the right to suspend or terminate your access to all or some of our Services, with or without notice, if we, in our sole discretion, determine that you are in breach of these Terms or have engaged in conduct that we, in our sole discretion, deem inappropriate. We may also suspend or terminate your access to all or some of our Services, with or without notice, for our convenience. You understand that such actions may be taken without any liability whatsoever to you for any suspension or termination, including for deletion of User Content.
All provisions of these Terms which by their nature should survive termination, will survive termination of your access to the Services, including without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
If your access to Services is terminated under these Terms, then you agree that you will not attempt to access the Services through use of a different username or otherwise. In the event that you violate the immediately preceding sentence, we reserve the right, in our sole discretion, to immediately take any or all of the actions set forth in these Terms without any notice or warning to you.
- Changes to Terms and Services
We reserve the right to change these Terms at any time without prior notice. When we make changes, the new Terms will be made available via the Services. We may also provide notice to you in other ways, such as through contact information you have provided. Your continued use of any of the Services after the effective date of the revised Terms (or engaging in such other conduct as we may reasonably specify) will constitute your consent to those changes to the fullest extent allowed by applicable law.
We may modify, suspend, or discontinue any aspect of the products or services we offer through the Services (including, the Service as a whole), at any time for any reason, with or without notice to you, including the availability of any Service, any feature, or Probellum Content.
- Your Warranties
You represent and warrant that (i) you have the legal right and capacity to enter into these Terms in your jurisdiction and to comply with these Terms or, if you are a minor, your parent or legal guardian has read and agreed to these Terms on your behalf; (ii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms; and (iii) your activities are lawful in every jurisdiction where you access or use the Services.
To the fullest extent permitted by law, you agree to indemnify and hold Probellum, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Probellum Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Services; (b) your violation of these Terms; (c) your violation of any rights of another party, including other users; or (d) your violation of any applicable laws, rules, or regulations.
We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
This provision does not require you to indemnify any of the Probellum Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided under these Terms. You agree that the provisions in this Section 9 will survive any termination of these Terms or your access to the Services.
- Our Disclaimer of Warranties
You expressly understand and agree that to the extent permitted by applicable law, your use of the Services is at your sole risk, and the Services are provided on an “as is” and “as available” basis, with all faults. We reserve the right to amend errors and update Service information at any time without prior notice. The Probellum Parties expressly disclaim all warranties, representations, and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement arising from use of the Services.
The Probellum Parties make no warranty, representation or condition that: our Services will meet your requirements; your use of our Services will be uninterrupted, timely, secure or error-free; that defects will be corrected; that the Services are free of viruses or other harmful components; or that the materials of the Services are correct, accurate, or reliable.
Any content downloaded from or otherwise accessed through our Services is accessed at your own risk, and you will be solely responsible for any damage to your property, including, but not limited to, your computer system and any device you use to access the Services, or any other loss that results from accessing such content.
Our Services may be subject to delays, cancellations, and other disruptions. The Probellum Parties make no warranty, representation or condition with respect to the Services, including but not limited to, the quality, effectiveness, reputation and other characteristics of the Services.
To the fullest extent permitted by applicable law, the Probellum Parties assume no responsibility for the timeliness, deletion, mis-delivery, or failure to store any content, user communications, or personalization settings.
- Limitations on Liability
- Disclaimer of Certain Damages
You agree that in no event will the Probellum Parties be liable for any loss of profits, revenue or data, indirect, incidental, special, or consequential damages arising out of or in connection with our Services, or damages or costs due to loss of production or use, procurement of substitute services, whether or not you have been advised of the possibility of such damages, arising out of or in connection with these Terms or the Services, on any theory of liability, resulting from: (1) the use or inability to use the Services; (2) the cost of procurement of substitute services; (3) conduct of any third party on or via the Services; or (4) any other matter related to the Services, whether based on warranty, copyright, contract, or any other legal theory.
- Cap on Liability
To the fullest extent permitted by applicable law, under no circumstances will the Probellum Parties be liable to you for more than the greater of (a) the total amount paid to Probellum by you in connection with the Services during the twelve (12) months immediately preceding the date of your claim or (b) fifty U.S. dollars (US$50.00). The foregoing cap on liability will not apply to liability of a Probellum Party for any injury caused by a Probellum Party’s fraud or fraudulent misrepresentation.
You agree that in the event you incur any damages, losses or injuries that arise out of Probellum’s acts or omissions, the damages, if any, caused to you are not irreparable or sufficient to entitle you to an injunction preventing any exploitation of any Service, and you will have no rights to enjoin or restrain the development, production, distribution, advertising, exhibition or exploitation of any Service owned or controlled by the Probellum Parties, provided that nothing in these Terms will restrict a California resident’s right under applicable law (if any) to seek public injunctive relief otherwise in accordance with the Arbitration Agreement set out below.
By accessing a Service, you understand that you may be waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read and understand, and hereby expressly waive, the benefits of Section 1542 of the Civil Code of California, and any similar law of any state or territory, which provides as follows: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
- Basis of the Bargain
The limitations of damages set forth above are fundamental elements of the basis of the bargain between Probellum and you.
- BINDING ARBITRATION (“Arbitration Agreement”)
- Applicability of Arbitration Agreement
You agree that any dispute or claim relating in any way to your access or use of the Services, to these Terms, or to any aspect of your relationship with Probellum, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Probellum Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior version of this Arbitration Agreement.
If you agree to arbitration, you are agreeing in advance that you will not participate in or seek to recover monetary or other relief in any lawsuit filed against the Probellum Parties alleging class, collective, and/or representative claims on your behalf. Instead, by agreeing to arbitration, you may bring your claims against the Probellum Parties in an individual arbitration proceeding (except for any Batch Arbitration, as described below). If successful on such claims, you could be awarded money or other relief by an arbitrator. You acknowledge that you have been advised that you may consult with an attorney in deciding whether to accept these terms, including this Arbitration Agreement.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
To begin proceeding claim, you must first send a letter describing your claim in detail, including your name and contact information, your legal claim, the specific facts giving rise to your claim (including the date(s) and amount(s) of any relevant transaction or interaction with us), and the requested relief) to our registered agent, Paracorp Incorporated 2140 S. Dupont Hwy., Camden DE, 19934. You and we agree to attempt in good faith to negotiate an informal resolution of your claim. If a resolution is not reached within thirty (30) days, you may commence an arbitration action as set forth herein. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Probellum will be entitled to make an offer of judgment in the arbitration proceeding. If the offer of judgment is not accepted, and the award is not more favorable than the unaccepted offer, you will be solely responsible for all costs incurred by Probellum after the offer of judgment is made to the extent permitted by applicable law. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Probellum will pay them for you. If the arbitrator determines the claims are frivolous, you agree to pay Probellum’s attorneys’ fees and costs in the arbitration, to the extent permitted by applicable law..
- Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Probellum. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial
You and Probellum hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and Probellum are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions
Except with respect to Batch Arbitration (as defined below), all claims and disputes within the scope of this Arbitration Agreement must be arbitrated on an individual basis and not on a class basis, only individual relief is available, and claims of more than one customer or user cannot be arbitrated or consolidated with those of any other customer or user. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in Section 12.
You and Probellum agree that, in the event that there are fifty (50) or more individual requests for arbitration of a similar nature filed against Probellum within an approximately thirty-day period (or otherwise in close proximity), regardless of the state(s) in which such claims are filed, JAMS will administer all such similarly situated arbitration demands on a collective basis as a single, consolidated arbitration (subject to a single set of fees, proceeding schedule, and, if required, hearing) before a single arbitrator in accordance with the requirements outlined elsewhere in this section, provided that – in the event that the arbitrator deems it impracticable or inequitable to administer all such claims collectively in a single arbitration – (s)he may group demands for arbitration into groups of not fewer than twenty (20) matters, plus a remainder group as needed (or as otherwise deemed by the arbitrator to be practicable, equitable, and in best keeping with the spirit of this provision) and arbitrate each group of matters as a single, consolidated arbitration (either structure a “Batch Arbitration”). You and Probellum agree (1) to work with JAMS in good faith to facilitate the resolution of disputes on a Batch Arbitration basis and (2) that requests for arbitration are of a “similar nature” if they arise out of the same event, agreement, or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Disagreements over the applicability of this Batch Arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. This Batch Arbitration provision shall in no way be interpreted as authorizing a class or collective arbitration or action of any kind, or any suit or arbitration involving joint or consolidated claims, under any circumstances other than those expressly set forth in this section.
- 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 8 The Green, Suite 5378, Dover, DE 19901, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used with us (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
- Survival of Agreement
This Arbitration Agreement will survive the termination of your relationship with Probellum.
Notwithstanding any provision in these Terms to the contrary, we agree that if Probellum makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Probellum.
- Exclusive Venue
To the extent the parties are permitted to initiate litigation in a court, both you and Probellum agree that all claims and disputes arising out of or related to these Terms will be litigated exclusively in the state or federal courts located in Dover, Delaware.
- Governing Law
These Terms and any action related to them will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
- General Provisions
- Electronic Communications
The communications between you and us use electronic means, whether you visit the Services or send us emails or other electronic communications, or whether we post notices on the Services or communicate with you via email or other electronic communications. You (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Probellum provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
These Terms, and your rights and obligations thereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Probellum may assign its rights and duties under these Terms to any party at any time without any notice to you.
- Force Majeure
Probellum will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, epidemic, pandemic, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Contact Us
If you have any questions, complaints or claims with respect to the Services, please contact us at: email@example.com.
Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of these Terms is held invalid or unenforceable, that portion will be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.
- Entire Agreement
These Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. As used in these Terms, “including” means “including without limitation.”