DEPOSITS; OPERATIONAL REQUIREMENTS
5. Value of Deposits. Customer declares, for the purposes of this Agreement, that (a) with respect to hard-copy (paper) records, microfilm, and microfiche stored pursuant to this Agreement, the value of such stored items is $1.00 per carton, linear foot of open-shelf files, container or other storage unit, and (b) with respect to round reel tape, audio tape, video tape, film, data tape, cartridges or cassettes or other non-paper media stored pursuant to this Agreement, the value of such stored items is equal to the cost of replacing the physical media.
6. Customer Instructions. Customer warrants that it has full authority to store the Deposits (as defined below) and direct their disposition in accordance with this Agreement. Office Depot will perform services pursuant to the direction of Customer’s agent(s) identified pursuant to Office Depot’s standards. Authority granted to any persons on standard authorization forms shall constitute Customer’s representation that the identified persons have full authority to order any service, including disposal or removal of Deposits. Such orders may be given in person, by telephone or in writing (fax, email or hard copy). Customer releases Office Depot from all liability by reason of the destruction of materials pursuant to Customer’s authorization.
7. Operational Procedures. Customer shall comply with Office Depot’s reasonable operational requirements, as modified from time to time, regarding cartons, carton integrity, delivery/pickup/account closing volumes, preparation for pickup, security, secure shredding protocols, access, and similar matters. Extraordinary volume requests (defined as 125% of the average volume over the immediately preceding three-month period) may involve additional costs, such as overtime, which Customer will pay at Office Depot’s overtime rates, provided Customer consents to such costs in advance.
8. Safe Materials and Premises. Customer shall not store with Office Depot or place in shredding bins any material that is highly flammable, may attract vermin or insects, or is otherwise dangerous or unsafe to store or handle, or any material that is regulated by federal or state law or regulation relating to the environment or hazardous materials. Customer shall not store negotiable instruments, jewelry, check stock or other items that have intrinsic value. Customer warrants that it shall only place paper-based materials in the shredding bins. Customer shall reimburse Office Depot for damage to equipment or injury to personnel resulting from Customer’s breach of this warranty.
TERM AND TERMINATION; AUTOMATIC RENEWAL OF SUBSCRIPTION SERVICES
9. This Agreement begins upon our notification to you that we have accepted this Agreement and continues until terminated by you or Office Depot. Services may be provided on a subscription basis (“Subscription Services”). Subscription Services are subject to an initial contractual term (the “Initial Term”). The initial term of this Agreement shall continue for one (1) year after commencement. At the end of the initial term, the term will continue with automatic renewals for additional one (1) year terms (“Renewal Term”), unless written notice of non-renewal is delivered by either party to the other not less than thirty (30) days prior to the expiration date. In the event that Office Depot continues to hold materials stored with Office Depot (“Deposits” or “Items”) after the expiration or termination of this Agreement, the terms of this Agreement shall continue to apply until all Deposits have been removed from Office Depot’s facility, except that Office Depot may adjust rates upon thirty (30) days’ written notice.
10. If, during the Initial Term or a Renewal Term of Subscription Service, you terminate the Agreement or Office Depot terminates your Agreement for cause, you will be responsible for payment of an early termination fee (“ETF”) equal to two (2) months of your recurring monthly payment for Subscription Services. Additionally, you will be responsible for Fees incurred by Office Depot for returning Deposits or Items, if any. You may change your Subscription Services plan by contacting our customer service department. If you upgrade to a higher tier Subscription Services plan, you will not be charged an ETF. If you downgrade your Subscription Services plan, you will be assessed an ETF. Changes to your Subscription Services plan will result in a new Initial Term.
11. Office Depot may suspend or terminate this Agreement without notice if (a) you are in breach of any of the terms of this Agreement; (b) your use of a Service is prohibited by law or is disruptive to, adversely impacts, or causes a malfunction to the Service, Office Depot’s network, or the use and enjoyment of other users; (c) Office Depot receives an order from a court; (d) Office Depot ceases to offer the Service(s) we determine that you are abusing a Service or using it excessively; (f) you fail to pay the Fees when due; (g) your bank or debit or credit card provider denies or discontinues your payment method for any reason; or (h) your debit or credit card expires and you fail to update your payment information.
FEES AND PAYMENT
12. You are required to pay the charges applicable to the Document Storage and Shredding Services and any other applicable charges, including taxes, shipping and handling fees, activation fees, set-up fees, minimum service fees, no-show fees, failure to cancel fees, termination fees, and insufficient credit or insufficient funds fees (each a “Fee”). You authorize Office Depot to charge your debit or credit card or other accepted payment method for payment of the Fees.
13. Fees may be charged (a) in advance of us providing the Document Storage and Shredding Service or (b) on a periodic basis. Set-up fees, activation fees, installation fees and other non-recurring charges will typically be charged at the time of purchase. Recurring Fees be billed in advance and usage charges will be billed in arrears.
14. BY PURCHASING A SUBSCRIPTION PLAN, YOU AGREE THAT WE MAY CHARGE THE PAYMENT METHOD ASSOCIATED WITH YOUR ACCOUNT AUTOMATICALLY ON A RECURRING MONTHLY BASIS UNTIL YOU OR WE TERMINATE YOUR SERVICE IN ACCORDANCE WITH THIS AGREEMENT.
15. If any portion of your bill is not paid by the due date, Office Depot may charge you a late fee as set forth in the Service Description. If Office Depot utilizes a collection agency or legal action to recover monies due, you shall reimburse us for all expenses incurred, including attorneys' fees. You agree that Office Depot may charge your debit or credit card or other accepted payment method until all amounts due to Office Depot are paid in full.
LIMITED WARRANTY, DISCLAIMERS, LIMITATION OF LIABILITY, AND LIQUIDATED DAMAGES
16. Liability for Loss or Damage to Deposits. Office Depot shall not be liable for any loss or destruction of, or damage to, Deposits, including costs resulting from a loss of a Deposit constituting a breach of data security or confidentiality, unless such loss or damage resulted from Office Depot’s negligence. If liable, the amount of Office Depot’s liability is limited as provided on the first page hereof. Deposits are not insured by Office Depot against loss or damage, however caused. Customer may, at its option, insure Deposits through third-party insurers for any amount. Customer shall cause its insurers of Deposits to waive any right of subrogation against Office Depot. If Deposits are placed in the custody of a third-party carrier for transportation, the carrier shall be solely responsible for any loss or destruction of, or damage to, such Deposits while in the custody of the carrier.
17. Value of Lost or Damaged Deposits. Office Depot liability, if any, for loss or destruction of, or damage to, Deposits is limited to the value of each Deposit as described above. Office Depot’s maximum liability with respect to services not related to storage is the amount paid by Customer for a discrete project or, if the loss is related to service of an ongoing and continuing nature, six months of fees paid by Customer for such service.
18. Notice of Claims. Claims by Customer must be presented in writing within a reasonable time, in no event longer than ninety (90) days after delivery or return of the Deposits to Customer, or ninety (90) days after Customer is notified of loss, damage or destruction to part or all of the Deposits.
19. EXCEPT AS SET FORTH IN THESE TERMS, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING YOUR TECHNOLOGY QUESTIONS OR EQUIPMENT PROBLEMS. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT, OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES SHALL CREATE ANY WARRANTY
20. IN NO EVENT SHALL OFFICE DEPOT (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), OR ITS THIRD-PARTY LICENSORS, PROVIDERS, OR SUPPLIERS, BE LIABLE FOR: (A) ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO OR LOSS OF DATA ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE SERVICES, OR COSTS OF RECOVERING, REPROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, (INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY), EVEN IF OFFICE DEPOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
21. IN NO EVENT SHALL OUR TOTAL LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SERVICES EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES IN THE PREVIOUS 12-MONTH PERIOD IN THE CASE OF A SUBSCRIPTION SERVICE OR THE ACTUAL AMOUNT PAID BY YOU FOR A ONE-TIME SERVICE.
22. CERTAIN JURISDICTIONS’ LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES AND OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU ONLY TO THE MAXIMUM EXTENT ALLOWED BY SUCH LAWS.
INDEMNIFICATION
23. You agree to indemnify, hold harmless, and defend (at our option) Office Depot, its officers, directors, employees, affiliates, agents, and subcontractors, and any other third-party provider who furnishes Services to you against all claims, liabilities, damages, costs and expenses, including reasonable attorney’s fees, in any way related to or arising from (a) the violation of applicable laws, regulations, or this Agreement by you; (b) the violation of rights of any third party; (c) claims for infringement of any intellectual property rights arising from your use of the Services, the Software, or the internet; or (d) any personal injury, death, or property damage attributable to you. Defense counsel must be reasonably acceptable to Office Depot. Office Depot reserves the right to employ its own counsel at its own expense. You agree not to settle any loss without the Office Depot written consent, which will not be unreasonably withheld.
ARBITRATION AGREEMENT AND WAIVERS OF CLASS ACTION AND JURY TRIAL
24. Any controversy or claim arising out of or relating to this Agreement, or its breach, shall be settled by binding arbitration in Palm Beach County, Florida, in accordance with the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall be selected pursuant to the AAA Rules and shall apply Florida law consistent with the Federal Arbitration Act. The party who initiates arbitration must pay any AAA filing fee. THE ARBITRATION OF DISPUTES SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. BY AGREEING TO ARBITRATION, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL, AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. YOU AGREE TO MAINTAIN THE CONFIDENTIALITY OF ANY DECISION AND/OR AWARD MADE BY THE ARBITRATOR. DO NOT USE THE SERVICES IF YOU DO NOT AGREE TO THESE PROVISIONS.
Under California Civil Code Section I789.3, California residents are entitled to the following consumer rights notice: The headquarters of Office Depot is located at 6600 North Military Trail, Boca Raton, FL 33496, Tel. (561) 438-4800. The Fees charged for the Services are specified in-store and on the Website. If you have a complaint regarding the Services or want a paper copy of these Terms, contact us by mail, telephone, or email at Customer.Relations@OfficeDepot.com or visit the Website at www.officedepot.com. The Consumer Information Center of the Department of Consumer Affairs may be contacted at 1625 N. Market Blvd., Suite N-112, Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210.
25. CLASS ACTION WAIVER. If any claim proceeds in court rather than through arbitration, YOU AND OFFICE DEPOT AGREE THAT YOU AND WE SHALL BRING CLAIMS AGAINST ONE ANOTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
26. WAIVER OF JURY TRIAL. If any claim proceeds in court rather than through arbitration, for any reason, YOU AND OFFICE DEPOT EACH WAIVE ANY RIGHT TO A JURY TRIAL.
GENERAL PROVISIONS.
27. All obligations under this Agreement that expressly or by their nature would continue beyond the cancellation, termination, or expiration of this Agreement shall survive such cancellation, termination, or expiration.
28. This Agreement is governed by the law of Florida and the arbitration provisions of this Agreement are governed by the Federal Arbitration Act. If any claim proceeds in court rather than through arbitration, for any reason, court proceedings must be brought in Palm Beach County, Florida, provided that if you bring a small claims action you may do so in the jurisdiction of your billing address. Except as otherwise required by applicable law, any claim under this Agreement must be filed within two (2) years after the claim or cause of action arises. Office Depot shall be entitled to recover its reasonable attorneys’ fees and costs if it prevails in any action.
29. Office Depot’s failure to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be an ongoing or future waiver of such terms. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions shall not be affected or impaired, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
30. This Agreement is the entire Agreement between you and Office Depot regarding the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void. In the event of any inconsistency between these Terms and a Services Description, the Services Description shall control.
31. You may not assign this Agreement without our written consent, and any attempted assignment shall be void. We may assign, delegate, or transfer our obligations under this Agreement to our affiliates without your consent. Any Services under this Agreement may be delivered by Office Depot or its contractors and suppliers.
32. You and Office Depot are entering into this Agreement as independent contractors. This Agreement does not create an employment relationship. Except as set forth in this Agreement, neither has the authority to bind the other to any third party or otherwise to act in any way as the representative of the other.
33. Notices to Office Depot under this Agreement shall be sent in writing to Office Depot at 6600 North Military Trail, Boca Raton, FL 33496, and shall be effective upon receipt. We will send notices to you by email, phone, text, posting or at your Account address, as applicable, which shall be deemed given: (a) when sent to your registered email address; or (b) when deposited in the United States mail addressed to you at last-known address; or (c) when hand delivered to your last known address, as applicable.
III. PRODUCT SUBSCRIPTION ORDERING
These General Terms and Conditions (“Terms”) govern the purchase of certain services (“Services”) from Office Depot, LLC, a Delaware limited liability company, and its affiliates, subsidiaries, and contractors (“Office Depot” or “us” or “we” or “our”). If you purchase a Service through www.officedepot.com (the “Website”), our Terms of Use and Privacy Policy also apply. Descriptions of the Services (each a “Service Description”) and applicable fees are available on the Website and in our stores, and they are incorporated into these Terms. The general terms in section I, the terms specific to each Service in the applicable section, and other referenced documents constitute binding legal agreements (together the “Agreements”, individually for each Service, product, or application, the “Agreement”) between you and Office Depot. Other terms apply to other Office Depot products and services.
PLEASE NOTE THESE AUTOMATIC RENEWAL TERMS. By signing up for subscription ordering with Office Depot, you agree that we may charge the payment method associated with your account, automatically on a recurring basis based on the delivery schedule you set, until you cancel your subscription. Except for certain offers that require a specified subscription term, you may cancel your subscription any time by calling us at 1-800-GO-DEPOT (800.463-3768) or using your “Subscription Manager” online. You will only be charged for orders that have been sent out for delivery. No refunds will be provided for orders that have been sent out for delivery.
THESE TERMS REQUIRE SETTLEMENT OF DISPUTES THROUGH BINDING ARBITRATION AND CONTAIN A WAIVER OF YOUR RIGHTS TO BRING A CLASS ACTION AND HAVE A JURY TRIAL. SEE PARAGRAPHS 19-21.
This section III addresses the terms for Product Subscription Ordering (“Product Subscriptions”) through the Website or in Office Depot and OfficeMax stores.
SETTING UP A CUSTOMER ACCOUNT; RELIANCE ON CUSTOMER INFORMATION
1. You may be required to have a customer account (an “Account”) to purchase some of our Services. By establishing an Account, you confirm that (a) you are the age of majority in your state and (b) you have the legal capacity to enter into and be bound by this Agreement on behalf of yourself or your company.
2. Your Account is personal to the Account owner. You are solely responsible for all use of your Account, even if unauthorized, for maintaining the confidentiality of your log-in information, and for monitoring your Account for unauthorized use. We have no liability for any unauthorized use under your Account.
3. You agree to the use of email or other forms of electronic communication for purposes of (a) entering into this Agreement; (b) ordering Services; and (c) delivery of purchase receipts, notices, records of transactions, and other information. You waive any legal requirement that may require an original or non-electronic signature or agreement or delivery or retention of documents in paper format.
4. You agree that we may record, store, and monitor communications between you and Office Depot. You grant Office Depot a perpetual, irrevocable, worldwide, royalty free license to use comments, feedback, materials, or information submitted by you to provide the Services and for any other purpose permitted by our Privacy Policy.
ENROLLMENT AND CANCELLATION
5. Your enrollment in subscription ordering starts with your first automatic delivery order. Your first order can be sent out for delivery on a specific date that you select. If you do not select a date, we will process your order immediately. After you select the frequency with which you want to receive your items, we will automatically send out your orders for delivery on the schedule you selected. Subscription orders can be scheduled for weekly, every other week, every three weeks, monthly, twice a month, every other month, quarterly and annual frequencies. Your subscription is personal to you, and you may not assign or transfer your subscription or any of the benefits associated with subscription ordering to any third party.
6. Except for certain offers that require a specified subscription term, you may change the subscription frequency, item quantity, cancel your subscription, and change the method of payment associated with your subscription at any time online by accessing your “Subscription Manager” in the "My Account" Option or calling 1-800-GO-DEPOT (1-800-463-3768). Any updates will be applied to all future orders associated with your subscription. You will only be charged for orders that have been sent out for delivery. To cancel a subscription that required a specified subscription term at the time of enrollment, please call 1-800-GO-DEPOT (1-800-463-3768).
LIMITATIONS ON USE AND AVAILABILITY PRODUCT SUBSCRIPTIONS
7. We reserve the right to accept, refuse, cancel, or modify subscription orders in our sole discretion.
8. If your item is not available on the day it is scheduled to be sent out for delivery, we will send you an email notifying you of the delay and will attempt to fulfill the order as soon as possible. If any item is no longer available, we will automatically suspend your subscription for that item and no additional orders associated with that subscription will be placed. We will send an email to you notifying you if a suitable replacement exists, however you will need to create a new subscription order for that item.
FEES, PAYMENT, AND DISCOUNTS
9. Credit cards are the only method of payment accepted for subscription ordering on the Website.
10. There is no fee to you for this service and we will, from time to time, offer various discounts and incentives when enrolling into subscription ordering. An incentive may be a percent discount off the regular price of an item and/or free delivery on qualifying orders. Some incentives may require a specified subscription term. The incentive type and valid dates for each will be posted on the product detail page when you enroll and are subject to change.
11. The total cost charged to your method of payment for each order will be the price of the item(s) on the day the order is processed less any discount or incentive, if applicable, plus sales tax and delivery fees. Unless you update your method of payment, or cancel your subscription, the charge for each recurring order will be automatically billed to the method of payment used when you create your subscription. If the method of payment becomes invalid at any time during the subscription period or if the charge is otherwise rejected, we will send an email to the email address associated with your subscription notifying you that the subscription has been placed on hold. In the email, you will be provided with a link to bring you directly to the item within the subscription manager that needs to be updated. Your subscription will remain on hold and no additional orders will be processed or shipped until the information is updated.
12. Your subscription and any related item discounts and/or incentives will remain in effect until your subscription is cancelled. If you cancel your subscription and recreate it, any related incentive and/or item discount will also be cancelled and you may choose from the then-current item discounts and/or incentives available. Other promotion pricing and limited-time offers may not be combinable with the subscription ordering discounts and/or incentives (e.g. Coupons and/or Mail in Rebates).
NOTIFICATIONS
13. If any problems arise with your account, the delivery address, or the method of payment associated with your subscription order, we will notify you via email using the address associated with your subscription asking that you resolve the problem. Your subscription will be placed on hold and no additional orders will be processed or sent out for delivery until the problem has been resolved.
LIMITED WARRANTY, DISCLAIMERS, LIMITATION OF LIABILITY, AND LIQUIDATED DAMAGES
14. EXCEPT AS SET FORTH IN THESE TERMS, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING YOUR TECHNOLOGY QUESTIONS OR EQUIPMENT PROBLEMS. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT, OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES SHALL CREATE ANY WARRANTY.
15. IN NO EVENT SHALL OFFICE DEPOT (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), OR ITS THIRD-PARTY LICENSORS, PROVIDERS, OR SUPPLIERS, BE LIABLE FOR: (A) ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO OR LOSS OF DATA ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE SERVICES, OR COSTS OF RECOVERING, REPROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, (INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY), EVEN IF OFFICE DEPOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
16. IN NO EVENT SHALL OUR TOTAL LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SERVICES EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES IN THE PREVIOUS 12-MONTH PERIOD IN THE CASE OF A SUBSCRIPTION SERVICE OR THE ACTUAL AMOUNT PAID BY YOU FOR A ONE-TIME SERVICE.
17. CERTAIN JURISDICTIONS’ LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES AND OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU ONLY TO THE MAXIMUM EXTENT ALLOWED BY SUCH LAWS.
INDEMNIFICATION
18. You agree to indemnify, hold harmless, and defend (at our option) Office Depot, its officers, directors, employees, affiliates, agents, and subcontractors, and any other third-party provider who furnishes Services to you against all claims, liabilities, damages, costs and expenses, including reasonable attorney’s fees, in any way related to or arising from (a) the violation of applicable laws, regulations, or this Agreement by you; (b) the violation of rights of any third party; (c) claims for infringement of any intellectual property rights arising from your use of the Services, the Software, or the internet; or (d) any personal injury, death, or property damage attributable to you. Defense counsel must be reasonably acceptable to Office Depot. Office Depot reserves the right to employ its own counsel at its own expense. You agree not to settle any loss without the Office Depot written consent, which will not be unreasonably withheld.
ARBITRATION AGREEMENT AND WAIVERS OF CLASS ACTION AND JURY TRIAL
19. Any controversy or claim arising out of or relating to this Agreement, or its breach, shall be settled by binding arbitration in Palm Beach County, Florida, in accordance with the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall be selected pursuant to the AAA Rules and shall apply Florida law consistent with the Federal Arbitration Act. The party who initiates arbitration must pay any AAA filing fee. THE ARBITRATION OF DISPUTES SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. BY AGREEING TO ARBITRATION, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL, AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. YOU AGREE TO MAINTAIN THE CONFIDENTIALITY OF ANY DECISION AND/OR AWARD MADE BY THE ARBITRATOR. DO NOT USE THE SERVICES IF YOU DO NOT AGREE TO THESE PROVISIONS.
Under California Civil Code Section I789.3, California residents are entitled to the following consumer rights notice: The headquarters of Office Depot is located at 6600 North Military Trail, Boca Raton, FL 33496, Tel. (561) 438-4800. The Fees charged for the Services are specified in-store and on the Website. If you have a complaint regarding the Services or want a paper copy of these Terms, contact us by mail, telephone, or email at Customer.Relations@OfficeDepot.com or visit the Website at www.officedepot.com. The Consumer Information Center of the Department of Consumer Affairs may be contacted at 1625 N. Market Blvd., Suite N-112, Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210.
20. CLASS ACTION WAIVER. If any claim proceeds in court rather than through arbitration, YOU AND OFFICE DEPOT AGREE THAT YOU AND WE SHALL BRING CLAIMS AGAINST ONE ANOTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
21. WAIVER OF JURY TRIAL. If any claim proceeds in court rather than through arbitration, for any reason, YOU AND OFFICE DEPOT EACH WAIVE ANY RIGHT TO A JURY TRIAL.
GENERAL PROVISIONS
22. All obligations under this Agreement that expressly or by their nature would continue beyond the cancellation, termination, or expiration of this Agreement shall survive such cancellation, termination, or expiration.
23. This Agreement is governed by the law of Florida and the arbitration provisions of this Agreement are governed by the Federal Arbitration Act. If any claim proceeds in court rather than through arbitration, for any reason, court proceedings must be brought in Palm Beach County, Florida, provided that if you bring a small claims action you may do so in the jurisdiction of your billing address. Except as otherwise required by applicable law, any claim under this Agreement must be filed within two (2) years after the claim or cause of action arises. Office Depot shall be entitled to recover its reasonable attorneys’ fees and costs if it prevails in any action.
24. Office Depot’s failure to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be an ongoing or future waiver of such terms. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions shall not be affected or impaired, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
25. This Agreement is the entire Agreement between you and Office Depot regarding the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void. In the event of any inconsistency between these Terms and a Services Description, the Services Description shall control.
26. You may not assign this Agreement without our written consent, and any attempted assignment shall be void. We may assign, delegate, or transfer our obligations under this Agreement to our affiliates without your consent. Any Services under this Agreement may be delivered by Office Depot or its contractors and suppliers.
27. You and Office Depot are entering into this Agreement as independent contractors. This Agreement does not create an employment relationship. Except as set forth in this Agreement, neither has the authority to bind the other to any third party or otherwise to act in any way as the representative of the other.
28. Notices to Office Depot under this Agreement shall be sent in writing to Office Depot at 6600 North Military Trail, Boca Raton, FL 33496, and shall be effective upon receipt. We will send notices to you by email, phone, text, posting or at your Account address, as applicable, which shall be deemed given: (a) when sent to your registered email address; or (b) when deposited in the United States mail addressed to you at last-known address; or (c) when hand delivered to your last known address, as applicable.
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