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    PENS.COM
    Terms Of Use and Sale

    Last revised: September 25, 2023

    Applicability

    These Terms of Use and Sale apply to all websites that are owned, operated, and maintained by or for National Pen Co. LLC, a Delaware limited liability company (“Pens.com,” “we,” “us,” or “our”) and upon which these Terms of Use and Sale are linked, including www.pens.com (excepting any sub-domain on which other terms of use or terms of sale are linked) (“Site”), the supply of products sold by Pens.com, as well as to all orders in the United States placed with us via any other channel (e.g., website, phone, mail). All orders placed by you on the Site are also on the basis of these Terms of Use and Sale and are subject to acceptance by us.

    General Provisions

    THESE TERMS OF USE AND SALE TOGETHER WITH THE PRIVACY POLICY AND ANY SUPPLEMENTAL TERMS, CONDITIONS, SALES POLICIES, OR RULES POSTED TO A SPECIFIC AREA OF THE SITE (COLLECTIVELY, “TERMS”) SET FORTH THE LEGALLY BINDING TERMS GOVERNING YOUR USE OF THE SITE.

    By entering the Site or placing an order, you acknowledge and agree to all terms, conditions, and rules stated in these Terms. You are not permitted to use the Site or place an order if you do not agree to be legally bound by these Terms. Please read these Terms carefully.

    We may, in our sole discretion, modify the Terms from time to time and we reserve the right to make changes at any time, without notice or obligation, to any of the Terms or the Site. By entering the Site or placing an order, you acknowledge and agree that you shall be bound by any such modifications. We suggest periodically visiting this page of the Site to review these Terms.

    Jurisdiction and Governing Law

    Pens.com makes no representations that the information and materials contained within the Site are appropriate for locations outside the United States. By entering the Site, you acknowledge and agree that it is intended for use only by citizens and residents of the United States of America residing within the United States of America aged 18 years or older and will only be governed according to the laws of the State of California without regard to conflicts of laws principles. If you are not a member of the intended audience, you are prohibited from accessing the Site.

    We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, a sale of assets or by operation of law.

    Content

    The Site provides you with information about Pens.com’s products and services and allows you to make purchases. All of this information and any other information we provide to you through the Site or any other media (e.g., catalog, flyer, online ad) is referred to herein as “Content.” Although Pens.com and all parties involved in creating, producing, or delivering Content make all reasonable efforts and use reasonable care and skill to provide the Site and to ensure that it is correct and up-to-date, we cannot guarantee 100% accuracy. WE THEREFORE PROVIDE THE SITE “AS IS” AND DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES REGARDING SECURITY, CURRENCY, CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, OR CONTINUED AVAILABILITY WITH RESPECT TO THE SITE AND CONTENT.

    The Site also offers job opening information and provides ways for you to apply for positions. You understand that nothing contained on the Site constitutes an offer of employment by Pens.com.

    Liability

    To the extent not prohibited by law, we accept no liability for any: i) loss which is not foreseeable (loss is foreseeable if it was an obvious consequence of our breach or if it was contemplated by you and us at the time you and we entered into our contract); or ii) loss which arises when we are not at fault or in breach of these Terms. Subject to these exclusions we shall have no liability to compensate you (whether in contract, tort (including negligence), breach of statutory duty or otherwise), other than any refund we make under these Terms or otherwise at our discretion.

    If you are a trade customer, we shall not be liable to you (whether in contract, tort (including negligence), breach of statutory duty or otherwise) for any: (i) loss of profits, business, contracts, goodwill, business opportunity and other similar losses, or any business interruption";" or (ii) indirect or consequential loss, neither will we be liable to you for any other loss which is not a foreseeable consequence of us being in breach of these Terms or our legal duties.

    To the extent any jurisdiction does not allow the exclusion of certain warranties, some of the above exclusions do not apply.

    Products and the Ordering Process

    The images of the products on our website are for illustrative purposes only. Although we have made every effort to display the colors accurately, we cannot guarantee that a device’s display of the colors accurately reflects the color of the products. Your product may vary slightly from those images. We do not sell products for purchase by children and do not knowingly sell our products to individuals under the age of 18.

    All goods are subject to availability. While we endeavor to hold sufficient stock to meet all orders and purchases, if we have insufficient stock to supply or deliver the goods ordered and paid for by you, we will attempt to contact you using the details you have provided to us to ask you how you wish to proceed. We may, at our discretion, process any part of the order which is available. Where goods are out of stock, we will refund you the price paid for such goods as soon as possible and in any case within 30 days or, in the case of an account customer, we may, in our absolute discretion, as soon as possible raise a credit to offset the amount invoiced to you. We reserve right to collect from customers the value of any amount(s) received unjustly due to errors or omissions on the Site, in other marketing materials, from products shipped in error, or otherwise.

    In the event that products delivered are defective or incorrect, please contact us by using the Contact Us section of the Site and we will arrange to collect the products from you at our cost. Without prejudice to your right to cancel orders generally, if you have notified us of a problem with the goods within 90 days of delivery, we may at our option either: i) offer to make good any shortage or non-delivery; or ii) replace or repair any goods that are damaged or defective upon delivery; iii) or cancel the order (or part of the order affected) and refund to you the amount paid by you for the goods in question.

    We are committed to delivering products of the highest quality. With our "The Perfect Print Promise," we guarantee that your order will be produced exactly as you designed it. If, by any chance, the products you receive do not match your approved version, please call us at the contact number found in the footer or in the Contact Us section of our website within 30 days of receiving the products and provide a detailed photograph showcasing either of the following issues: a) a mistake in the production process where the final product differs from the approved version, or b) an issue with the print quality.

    We will take appropriate action to rectify the problem. This may, at our option, include a discount for the affected products, or re-printing and resending the affected products at no additional cost to the customer.

    • Exclusions: The Perfect Print Promise does not apply to products that have been modified after delivery, or to products that have been subjected to improper handling, storage, or use after delivery.
    • Notice of claim: To make a claim under the Perfect Print Promise, you must notify us by phone to open a claim within 30 days of receipt of the product.
    • Sole guarantee: The Perfect Print Promise is the sole and exclusive guarantee provided by Pens.com with respect to the quality of our products. All other warranties, express or implied, are hereby disclaimed, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement.
    • Limitation of liability: Our liability under the Perfect Print Promise shall be limited to the purchase price of the product. In no event shall we be liable for any indirect, incidental, or consequential damages arising from the use or inability to use the product.

    For any other issues with your products, if you notify us of a problem within 30 days of delivery, we may, at our option, take one of the following actions: i) Offer to make good any shortage or non-delivery; ii) Replace or repair any goods that are damaged or defective upon delivery; or iii) Cancel the order (or part of the order affected) and refund to you the amount paid for the goods in question.

    We reserve the right to cancel any order at any time including after shipment. We reserve the right to refuse any order you place with us through the Site or by any other method. In the event we make a change to or cancel an order, we will attempt to notify you by contacting you at the email address, phone number, and/or mailing address on file for you. If you place an order with us, your order will also be governed by the Order Terms and Conditions below.

    Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process. You place an order for a product on the Site by pressing an order confirmation button at the end of the checkout process. This order is a binding offer with an obligation to pay, subject to acceptance by us. By confirming your order, you are agreeing to purchase the product you have selected. Following this, we will send to you an order confirmation detailing the products you have ordered. Your order is accepted when you receive an order confirmation.

    We take payment for your order either at the time of ordering, or alternatively, you can agree to pay for the product and any applicable charges within 30 days of receiving an invoice. Unfortunately, we do not sell to all countries.

    Delivery of Goods and Title

    We will aim to deliver the goods in accordance with your order usually within the stated delivery time but not more than 28 days except in exceptional circumstances after the day you place your order, unless otherwise agreed between you and us. In the unlikely event that we do not make the goods available to you within 28 days of placing your order or within the agreed time you will have the option of cancelling your order by notifying us accordingly prior to shipments. Further information about delivery of our goods can be found in the Help Center.

    Before placing your order, please refer to the delivery options set out on our Site to ensure that we can deliver to your address. A valid signature may be required on collection or delivery. In the unlikely event that you have not received all the goods within the stated delivery time, or as otherwise agreed between you and us, you must notify us immediately. You must do all that you reasonably can to enable delivery to take place at the given time and place. If delivery fails as a result of circumstances within your reasonable control, the courier will leave a notice of attempted delivery indicating the steps to follow to organize a new delivery date. If we are unable to arrange a date for re-delivery the sum payable under your order shall remain due and owing.

    All goods purchased are F.O.B. at our or our service provider’s premises i.e. ownership in the goods and risk of loss passes to you at the time of delivery by us or on our behalf to a common carrier.

    Price and Payment

    The price payable for your order is as set out at the time you submit your order. The price payable for the goods includes taxes at the current prevailing rate. Delivery and handling charges may be added, which you will be informed of. We will inform you of the total price payable for the goods ordered before payment is required. Occasionally, we advertise goods at a promotional price. You must quote the relevant promotion code, otherwise you may be charged the full price. Prices are subject to change without notice. Promotional offers may not be combined with any other offers.

    Depending on the monetary value of an order, we may require a deposit. Our accounting department will accordingly contact you. In the event a deposit is required, please note that your orders will not be put into productions until we have received the required deposit. For orders made through the Site, payment can be made by most credit cards by completing the relevant details on the checkout page.

    When completing a purchase, where you elect to pay the full purchase price at the time of ordering, we must receive payment for the entire order and any applicable charges when you place the order, unless we have agreed otherwise in advance in writing. Alternatively, when completing a purchase where you elect to pay the full purchase price later, we must receive payment for the entire order and any applicable charges within 30 days following the date of invoicing, unless we have agreed otherwise in advance in writing.

    By using a credit card to pay for your order or purchase, you confirm that the card being used is yours or that you are authorized to use it. All credit card holders are subject to validation checks and authorization by the card issuer. If the issuer of the card refuses to authorize payment we will not accept your order or purchase, we will not be obliged to inform you of the reason for the refusal, and we will not be liable for the item not being delivered or provided to you. We are not responsible for the card issuer or bank charging the holder of the card as a result of our processing of your credit/debit card payment in accordance with your order or purchase. We recommend that you do not communicate your payment card details to anyone, including us, by email. We cannot be responsible for any losses you may incur in transmitting information to us by internet link or by email. Any such loss shall be entirely your responsibility. We shall be entitled at all times to set off any debt or claim which we may have against you against any sums due from us to you. If you are a trade customer, you may not withhold payment of any invoice or other amount due to us by reason of any right of set off or counterclaim, which you may have, or allege to have.

    Occasionally, an error may occur and goods may be incorrectly priced in which case we will not be obliged to supply the goods at the incorrect price or at all. We will (at our discretion) either cancel your order and refund the price you have paid or use reasonable endeavors to contact you and ask you whether you wish to continue with the order at the correct price. If we are unable to contact you or you do not wish to continue with the order at the correct price, we will cancel your order and refund the price you have paid.

    The format of our invoice and statements to you will solely be dictated by us and we will not enter into any variation of our format unless any proposed variations are requested in writing at least six months in advance and expressly agreed by us.

    If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. If you are a trade customer, you are responsible for all orders placed by your employees and for any purchases made on cards issued to you and we are not bound by any individual order limit you may impose on your employees.

    We may suspend further supply or delivery, stop any goods in transit or terminate our contract by notice in writing to you if you are in breach of an obligation hereunder, or you become unable to pay your debts when they fall due, or proceedings are or are reasonably likely to be commenced by or against you alleging bankruptcy or insolvency. Upon termination, any payments you owe to us (even if they are not yet due for payment) will be immediately due and payable and we shall be under no further obligation to supply goods to you.

    Password and Account Security

    You may create your own account on the Site by completing the registration process. In doing so, you must provide us with accurate and complete registration information and update us if this information changes.

    If you create an account, we will assign you, or allow you to select, a password. You must keep your password confidential, and you may not permit any other person to use your password or your account for any purpose. You will be responsible for all use of your password, including, without limitation, any use by any authorized or unauthorized third party. You must notify us immediately if you believe your password may have been used by any unauthorized person or entity. For security purposes, we recommend you change your password often.

    Under no circumstance should you respond to a request for your password. Our employees will never ask for your password. You must notify us immediately if you receive such a request. We reserve the right to suspend or terminate your use of the Site if we believe that your password is being used without permission or otherwise in a manner that may disrupt the Site.

    Consent for Communications

    IF YOU PROVIDE YOUR TELEPHONE NUMBER TO US VIA THE SITE, YOU GIVE YOUR ELECTRONIC SIGNATURE AND CONSENT FOR US TO SEND YOU MARKETING CALLS/TEXT MESSAGES AT THAT NUMBER USING AN AUTODIALER AND/OR PRERECORDED MESSAGES. YOU ALSO ACKNOWLEDGE THAT YOUR CONSENT TO RECEIVE THESE MARKETING COMMUNICATIONS IS NOT REQUIRED TO PURCHASE ANY GOODS OR SERVICES. STANDARD MESSAGE AND DATA RATES MAY APPLY.

    Pens.com’s Intellectual Property

    All images, text, sound, photos, custom graphics, button icons, the collection and compilation and assembly thereof, and the overall “look and feel” and distinctiveness of the Site constitute trade dress and are either the property of Pens.com or used on this Site with permission. The absence on the Site of our name or logo does not constitute a waiver of our trademark or other intellectual property rights relating to such name or logo. All other product names, company names, marks, logos, and symbols appearing on the Site may be the trademarks and the property of their respective owners.

    We may, directly or through our affiliates, offer certain products that are visually similar but that are sold under different trademarks. You may not use any of our trademarks in connection with the resale of any product, including the resale of other products purchased from us or on of our affiliates, except for the trademark that was affixed to the products at the time those products were delivered to you by us or our affiliate.

    You acknowledge and agree that Content and services available on the Site are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws and are owned or licensed by Pens.com. Except as expressly authorized by Pens.com, either in these Terms or elsewhere, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from the Site or Content.

    Without waiving any of the foregoing rights, you may print or download information from the Site for your own personal, non-commercial home use, provided that you keep intact all copyright and other proprietary notices. Systematic retrieval of information from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from Pens.com is prohibited.

    Digital Millennium Copyright Act Notice

    If you believe that any material on the Site infringes your copyright rights, please contact our designated agent for Digital Millennium Copyright Act notices at:

    National Pen Co. LLC
    Attn: DMCA
    342 Shelbyville Mills Road
    Shelbyville, TN 37160
    Email address: CustomerCare@pens.com
    Phone number: 1-866-900-7367

    In your notice, please include:

    • Your physical or electronic signature;
    • Identification of the copyrighted work you claim to have been infringed, or, if there are multiple copyrighted works, a list of such works;
    • Identification of the material that you claim to be infringing, and where the material is located on the Site;
    • Your address, telephone number, and email address;
    • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you or the law; and
    • A statement, under penalty of perjury, that the information in your notice is accurate.

    If the notice is submitted by someone else on your behalf, the notice must also contain a statement that, under penalty of perjury, the person submitting the notice is authorized to act on your behalf.

    Submissions

    We may let you submit material to us or to third parties: for example, you may be able to upload a photo, send us messages, provide a testimonial, or post a review about our products. In these Terms, we use “Submissions” to refer to any material of any kind that you submit to us or third parties through the Site or in connection an order, including text, files, images, photos, video, sounds, and musical or literary works.

    We are not responsible for the content of Submissions provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about Submissions, including as to their legality or accuracy.

    We reserve the right, in our sole discretion, to refuse, remove, or edit any of your Submissions, or to restrict, suspend, or terminate your access to all or any part of the Site, and we may do this with or without giving you any prior notice.

    We may link Submissions or parts of Submissions to other material, including material submitted by other users or created by us or third parties. We may use Submissions for our internal business purposes, for example, to examine trends or categories or to promote, market, or advertise our products. You acknowledge that we may use your Submission for any and all purposes, including for marketing and advertising, and that we may commercially benefit from use of your Submissions without any compensation to you.

    Each time you make a Submission, you represent and warrant as follows:

    1. You own your Submission or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trademark), privacy or publicity rights, rights of confidentiality, or rights under contract.
    2. You have the right to submit any logo, trademark, or other graphic identifying a business or organization contained in your Submission.
    3. Your Submission is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give rise to civil liability, violate any law, or otherwise be deemed inappropriate.
    4. Your Submission does not advertise any product or service or solicit any business.
    5. Your Submission does not identify any individual (including by way of name, address, picture, or video) under the age of 18 and if your Submission identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your Submission.
    6. You are not impersonating any other person.
    7. You will not collect usernames and/or email addresses of others for the purpose of sending unsolicited email.
    8. You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another user or person.
    9. You will not engage in any automated use of our systems, such as using scripts to alter our Content.
    10. You will not, without authorization, access, tamper with, or use non-public areas of the Site, our computer systems, or the technical delivery systems of our service providers.
    11. Except as necessary to maintain your own computer security by use of commercial-off-the-shelf anti-virus or anti-malware products, you will not attempt to probe, scan, or test the vulnerability of the Site or any other component of our system or network or breach any security or authentication measures.

    We are entitled to identify you to third parties who claim that their rights have been infringed by your Submission.

    Submissions are not considered to be confidential. You agree not to make any Submission in which you have any expectation of privacy. We do not claim any ownership rights in Submissions; however, by making a Submission you hereby grant us an irrevocable, perpetual, fully sub-licensable, non-exclusive, royalty-free, worldwide license to use, telecast, copy, perform, display, edit, distribute, reproduce, modify, adapt, and otherwise exploit the Submission, or any portion thereof, and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such Submission, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. You represent and warrant that you own or otherwise control the rights to your Submission. You agree to indemnify us and our Affiliates (as defined below) for all claims arising from or in connection with any claims to any rights in your Submission or any damages arising from your Submission.

    Disclaimers & Limitation of Liability

    YOU USE THE SITE AND CONTENT AT YOUR OWN RISK. THE SITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PENS.COM AND ITS AFFILIATES, DISTRIBUTORS, SERVICE PROVIDERS, VENDORS, AND LICENSEES, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, MANAGERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARENTS, SUBSIDIARIES, CORPORATE AFFILIATES, AGENTS, AND LICENSORS (REFERRED TO COLLECTIVELY AS “AFFILIATES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND CONTENT (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT).

    IN PARTICULAR, PENS.COM AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE AVAILABILITY, QUANTITY, ACCURACY, OR COMPLETENESS OF CONTENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PENS.COM AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE; OR (F) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE.

    TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PENS.COM NOR ITS AFFILIATES WILL BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO USE OF THE SITE OR CONTENT.

    Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Pens.com may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Pens.com’s liability will be the minimum permitted under such law.

    Indemnity

    You agree to defend, indemnify, and hold Pens.com, our Affiliates, third-party service providers, employees, contractors, agents, officers, and directors harmless from any and all liabilities, claims, demands, suits, investigations, losses, judgments, costs, and expenses (including reasonable attorneys' fees and costs) that arise out of or are related to your violation or alleged violation of these Terms or use of the Site or Content.

    Dispute Resolution

    Any controversy, claim, or dispute arising out of or related to these Terms, Site, Content, or your order including, but not limited to, alleged violations of state or federal statutory or common law rights or duties (a “Dispute”) shall be solely and exclusively resolved according to the procedures set forth in this paragraph. If the parties are unable to resolve any Dispute through informal means, either party may initiate binding arbitration of such Dispute by sending notice demanding arbitration to the other party. The demand for arbitration shall be made within a reasonable time after the Dispute has arisen, but in no event shall it be made more than one year from when the aggrieved party knew or should have known of the controversy, claim, or facts forming the basis of the Dispute. The arbitration shall be initiated and conducted according to American Arbitration Association rules and procedures for consumer arbitration (if you are a consumer) or commercial arbitration (if you are a business) (the “Arbitration Rules”). The arbitration shall be conducted in San Diego County, California before a single neutral arbitrator appointed in accordance with the Arbitration Rules with the option to appeal the arbitrator’s decision to an Optional Appellate Arbitration in accordance with the Arbitration Rules. The arbitrator shall not have the power to award punitive damages against any party. To the fullest extent permitted by applicable law, arbitration costs and fees shall be divided equally between the parties. To the fullest extent permitted by applicable law, attorneys’ fees shall be borne by each party independently and no party shall be liable for the attorneys’ fees of the other party. Notwithstanding the foregoing, if the arbitrator determines that a filed Dispute is frivolous, the arbitrator, applying applicable law, may award the prevailing party its attorneys’ fees and costs. No Disputes may be arbitrated on a class or representative basis and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY AGREEING TO THESE TERMS, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO JOIN CLAIMS OR DISPUTES WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION, CLASS ARBITRATION, OR SIMILAR PROCEDURAL DEVICE; WAIVES ANY RIGHT IT MAY HAVE TO PRESENT ITS CLAIM OR DISPUTE IN A COURT OF LAW; AND WAIVES ANY RIGHT TO BRING A DISPUTE MORE THAN ONE YEAR FROM WHEN IT KNEW OR SHOULD HAVE KNOWN OF THE CONTROVERSY, CLAIM, OR FACTS FORMING THE BASIS OF THE DISPUTE. Judgment on the award rendered by the arbitrator(s), if any, may be entered for enforcement purposes in any court having jurisdiction thereof.

    Any matters submitted to a court for resolution shall be submitted to the state or federal courts of San Diego County, California and all parties agree to the personal jurisdiction thereof.

    Force Majeure

    We shall have no liability to you for any failure or delay in supply or delivery or for any damage or defect to goods supplied or delivered hereunder, or for any other liability, in each case that is caused by any event or circumstance beyond our reasonable control (including, without limitation, accidents, extreme weather conditions, fire, explosion, flood, storm, earthquake, natural disaster, failure of telecommunications networks, inability to use transport networks, mechanical failures, acts of God, terrorist attack, epidemic, pandemic, war, civil commotion, riots, strikes, lockouts and other industrial disputes, acts or restraints of Government, and imposition or restrictions of imports or exports).

    Privacy & Security

    Our Privacy Policy is incorporated into these Terms. You acknowledge that the requesting URLs of the machine originating the request and the time of the request may be logged for access statistics and security purposes and agree that your use of this Site constitutes consent to such monitoring. Pens.com maintains exclusive control of access and right of access to this Site. You understand and agree that we reserve the right to revoke your access at any time without notice or cause of action for any reason whatsoever.

    Severability

    If any provision of these Terms (including any provision in which we exclude or limit our liability to you) is found to be invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of these Terms and the remainder of the provision in question shall not be affected.

    Links

    The Site may contain links to sites or be accessed by links from sites that are owned and operated by independent third parties to which these Terms do not apply. We provide links as a convenience and the inclusion of the link does not imply that Pens.com endorses or accepts any responsibility for the content on those sites. Pens.com is not responsible for content including but not limited to claims, representations, warranties, offers, illustrations, names, or endorsements on any other sites. Further, Pens.com is not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with the linked site, unless specifically stated therein. Your linking to any other off-site pages or other sites is at your own risk. We recommend that you review any terms of use statement and privacy policy before using any other linked site, including social media sites.

    Notice to California Residents

    Under California Civil Code Section 1789.3, California residents are entitled to the following information: The provider of the Site is National Pen Co. LLC, 342 Shelbyville Mills Road, Shelbyville, TN 37160. To file a complaint regarding the Site or to receive further information about the Site, please contact us. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.

    Contact Information

    If you have any questions, complaints, or claims, please contact us at:

    National Pen Co. LLC
    342 Shelbyville Mills Road
    Shelbyville, TN 37160
    Email address: CustomerCare@pens.com
    Phone number: 1-866-900-7367