Terms of service

Birmingham Pen Company Terms of Service
Last Updated: February 25, 2024

Thank you for using the BirminghamPens.com website and associated content (hereinafter “Website”), which is owned, operated, or licensed by Birmingham Pen Company. (“Birmingham Pen”). Birmingham Pen provides you with a limited license to use the Website subject to the terms and conditions contained within this Terms of Service Agreement (hereinafter “Agreement”).

YOU HAVE A DUTY TO READ THIS TERMS OF SERVICE AGREEMENT.

NOTICE OF ARBITRATION. THIS TERMS OF SERVICE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND BIRMINGHAM PEN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.

By using the Website, you manifest your assent and agree to be bound by this Agreement. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Birmingham Pen reserves the right to suspend, replace, modify, amend, or terminate this Agreement at any time and within its sole and absolute discretion. In the event Birmingham Pen replaces, modifies, or amends this Agreement, the Last Updated date, located at the top of this Agreement, will change. Your continued use of the Website after a change in the Last Updated date above will constitute your manifestation of assent to and agreement with any replacement, modification, or amendment herein.

Birmingham Pen hereby incorporates its Privacy Policy as if fully restated herein. You are instructed to review Birmingham Pen’s Privacy Policy to understand the personal and personally identifiable information that Birmingham Pen may collect from you when you use the Website and how Birmingham Pen may use that personal or personally identifiable information.

a. User Warranties

By using the Website, you warrant that you are age eighteen (18) or above the age of majority within your legal jurisdiction, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement.

b. Limited License

You acknowledge and agree that the Website is the property of or is licensed by Birmingham Pen and is protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website in any manner not expressly authorized under the terms of this Agreement. Birmingham Pen reserves all of rights not expressly granted through this Agreement.

Birmingham Pen provides you with limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty-free license to use the Website for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website.

c. Acceptable Use Policy

When you use the Website, you agree to use it only for its customary and intended purposes and as permitted by the terms of this Agreement and any applicable law, regulation, statute, or ordinance. Additionally, you agree that you are responsible for any breach of your obligations under the terms of this Agreement and for any losses suffered by Birmingham Pen for such a breach, including, but not limited to, monetary damages, costs, and attorneys’ fees. You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from:

• Attempting to access the Website other than through a standard web browser unless you have been permitted to do so by Birmingham Pen through a separate, written agreement;
• Accessing or attempting to access the Website through automated means;
• Circumventing the technological protection measures of the Website;
• Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties
• Disrupting or otherwise interfering with the Website or its associated servers or networks;
• Scraping, reproducing, republishing, selling, reselling, duplicating, or trading the Website or its content;
• Diverting or attempting to divert customers of the Website to another website or service;
• Sending unsolicited or unauthorized communications to users of the Website or third parties;
• Reverse engineering, decompiling, translating, or disassembling the Website or its content; and
• Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.

Birmingham Pen reserves the right to modify, amend, or terminate the Website or its associated content at any time and without prior notice. Birmingham Pen also reserves the right to refuse service or access to the Website to any person or business entity at any time and without notice.d. Idea Submission Policy

d. Idea Submission Policy

Birmingham Pen may provide you with the ability to submit ideas to Birmingham Pen through the Website. If you submit ideas to Birmingham Pen, you agree that any ideas that you submit to Birmingham Pen will automatically become the property of Birmingham Pen and that you will not be compensated for the submission, use, or implementation of the idea that you submitted to Birmingham Pen. You understand and agree that Birmingham Pen may use or redistribute any ideas that you submit to Birmingham Pen for any purpose and in any way and that Birmingham Pen has no obligation to keep any ideas submitted to Birmingham Pen confidential.

e. Ordering and Payment

Payment for all orders placed through the website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between you and Birmingham Pen until Birmingham Pen accepts your invitation to deal by performance, specifically, by shipping the ordered goods. You agree that you will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Birmingham Pen is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Birmingham Pen’s payment processor. You agree that you will not initiate any chargebacks to Birmingham Pen unless otherwise authorized by Birmingham Pen in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Birmingham Pen.

All purchases made through the Website are subject to Birmingham Pen’s Shipping and Returns Policies, which are listed on the Website and are hereinafter incorporated by reference. Birmingham Pen may replace, discontinue, or modify its Shipping and Returns Policies at any time and within its sole and absolute discretion. If Birmingham Pen decides to modify its Shipping and Returns Policies, the modified policies will be posted by Birmingham Pen on the Website.

f. Product Availability

While Birmingham Pen strives to carry or have regular access to sufficient inventory, it is possible high volume or rare products are out of stock at the time of your order. If this is the case, Birmingham Pen will contact you in a reasonable time frame to advise you of the issue. If you have time-sensitive orders, please respond to Birmingham Pen’s notice as soon as possible.

g. Shipping

Birmingham Pen provides shipping via USPS, UPS, FedEx, and other freight carriers. All prices are F.O.B. from Cranberry Township, PA, United States, unless specifically provided otherwise.
Any damaged or incorrect shipments must be reported within 48 hours of receipt. For damaged shipments, the shipment must be refused at the time of delivery and the original box and packaging must be kept until the carrier/shipper who delivered claims them unnecessary for any claim purpose. If not reported within 48 hours of receipt, Birmingham Pen will consider all claims of damage, defect, or other error waived. All shipment fees incurred from refused products shall be paid by you and will not be chargeable to Birmingham Pen

Shipping charges are based on the monetary amount of your order and the shipping destination. All shipments will be made consistent with Birmingham Pen’s Shipping Policy, which is hereinafter incorporated by reference and may be changed at any time and within Birmingham Pen’s sole and absolute discretion.

h. Third-Party Links

You acknowledge and agree that the Website may contain links to third-party websites or content that Birmingham Pen does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and you agree that Birmingham Pen will not be responsible for websites not under the ownership or control of Birmingham Pen.

i. Term and Termination

The term of this Agreement will begin upon your first accessing of the Website and will continue until Birmingham Pen terminates your access to the Website. Birmingham Pen reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.

j. Trademarks

You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on the Website by Birmingham Pen, including but not limited to BIRMINGHAM PEN, are common law or registered trademarks owned by or licensed to Birmingham Pen. You are expressly prohibited from using the trademarks of Birmingham Pen to cause confusion in, to cause mistakes in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of

Birmingham Pen in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.

k. Disclaimer of Warranties and Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT BIRMINGHAM PEN WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT BIRMINGHAM PEN'S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.

BIRMINGHAM PEN EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE. PRODUCTS PURCHASED THROUGH THE WEBSITE ARE PROVIDED ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.

BIRMINGHAM PEN WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.

l. Indemnification

You agree to indemnify, defend, and hold harmless Birmingham Pen, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) your use of the Website, (ii) your purchase of products through the Website; (iii) your use or misuse of products obtained through the Website; (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Birmingham Pen will not provide you with the ability to control Birmingham Pen's defense, and Birmingham Pen reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

m. Choice of Law and Stipulation to Jurisdiction

You and Birmingham Pen agree that any dispute arising out of or related to this Agreement or your use of the Website, including, but not limited to, your purchase of goods through the Website, will be governed by the laws of the State of Pennsylvania, without regard to its conflict of laws rules. Specifically, the validity, interpretation, and performance of this Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Except for claims for injunctive relief by either party, you and Birmingham Pen agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement or your use of the Website including, without limitation, any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements concerning the existence, breach, interpretation, application, or termination of this Agreement, will be resolved by final and binding arbitration pursuant to the Federal Arbitration Act in Pennsylvania or, at the option of the party seeking relief, by telephone, online, or via written submissions alone, and be administered by the American Arbitration Association (“AAA”) under the then in force Commercial Arbitration Rules by one arbitrator appointed in accordance with such rules. Such arbitration will be independent and impartial. If the parties fail to agree on the arbitrator within twenty (20) calendar days after the initiation of the arbitration hereunder, AAA will appoint the arbitrator.

This arbitration will be conducted in the English language. The decision of the arbitrator will be final and binding on the parties and judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney’s fees, to the prevailing party. Any judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.

ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PURCHASE OR USE OF ITEMS FROM OR THROUGH THE WEBSITE, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND BIRMINGHAM PEN EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.

Any claims must be brought within one year of discovery or will otherwise be barred.

n. Force Majeure

Birmingham Pen will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond Birmingham Pen's control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.

o. Survivability

The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your User Account, or the Website, including, but not limited to, your duty to indemnify and defend Birmingham Pen.

p. Severability

In the event any term or condition of this Agreement is deemed invalid or unenforceable, the remaining terms and conditions of this Agreement will remain in full force and effect.

q. Interpretation

This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.

r. Assignment

You are expressly prohibited from assigning your rights and duties under this Agreement. Birmingham Pen reserves the right to assign its rights and duties under this Agreement, including in a sale of Birmingham Pen or its Website.

s. Waiver, Privacy Policy, and Integration

No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is written and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties. Birmingham Pen incorporates by reference its Privacy Policy as if fully stated herein.

Product Liability Disclaimer

The Birmingham Pen Company (“Birmingham Pen”) offers its products to you conditioned upon your acceptance without modification of the terms, conditions, and notices contained herein. Your continued use of our products constitutes your manifestation of assent to the terms, conditions, and notices contained herein.

The products have been designed for the specific use designated within its accompanying instructional materials or as displayed on the Birmingham Pen website. This product may not be used for unlawful uses or for uses not expressly stated in its instructional materials.

Birmingham Pen does not represent or warrant that the use of the product will have the results described in its accompanying documentation or that the information provided with the product is complete, accurate, or useful. You should test the product to determine its properties and its suitability for your intended use.

BIRMINGHAM PEN EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE PRODUCT. THE PRODUCT IS PROVIDED ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.

BIRMINGHAM PEN WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THIS PRODUCT, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. IN NO EVENT WILL BIRMINGHAM PEN’S LIABILITY EXCEED THE VALUE OF THE PRODUCT(S) SOLD.

You agree to indemnify, hold harmless, and defend Birmingham Pen, its officers, employees, agents, successors, and assigns, from and against any and all claims, demands, losses, damages, rights, and actions of any kind, including, but not limited to, property damage, infringement, personal injury, and death, that either directly or indirectly arise out of or are related to your use of the product.

The product liability disclaimer document states the entire obligation of Birmingham Pen with respect to the products. If any part of this disclaimer is determined to be void, invalid, unenforceable or illegal, including, but not limited to the warranty disclaimers and liability disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall remain in full force and effect.

Birmingham Pen Company
716 Thomson Park Dr.
Cranberry Twp., PA 16066

Email: write@birminghampens.com