Please read these Terms of Service (the “Terms” or “Agreement”) carefully. The Terms govern your use of the Services (as defined below) and constitutes your consent to this Agreement. PLEASE READ THESE TERMS CAREFULLY AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND COMPANY AND CONTAIN A MANDATORY ARBITRATION PROVISION.
Terms of Service. This Agreement is among you and The Original Sleep LLC, a Washington limited liability company (“Company” or “We” or “Us”) concerning your use (including any access to) the Original Sleep website located at [https://www.theoriginalsleep.com] (together with any materials and services available therein, and successor site(s) thereto, collectively, the “Website”), our products and services, mobile application “App”, and/or other communication channels under our control such as email, telephone, or social media (together with App and Website, the “Services”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Company through the Website, or otherwise made available to you by Company (“Additional Terms”).
By using the Services, you affirm that you are at least eighteen (18) years of age (or the age of majority) or have obtained parental or guardian consent to enter into this Agreement if you are at least thirteen (13) years of age but under eighteen (18) years of age. If you are the parent or legal guardian of an individual under the age of eighteen (18) and believe that such individual has used the Services without your consent or authorization, please contact firstname.lastname@example.org.
Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Website. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes or otherwise notified you of such changes. Your use of the Services following any changes to this Agreement will constitute your acceptance of such changes.
The Website and Services are controlled or operated (or both) from the United States and are not intended to subject the Company to any non-U.S. jurisdiction or law. The Website and Services may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Website or Services is at your own risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the Website or Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
Subscription Terms. By signing up for the Company’s Services and by creating an account (“User Account”), you agree to our subscription program terms (“Subscription Program” or “Program”) until you cancel your User Account. We may, in our sole discretion, terminate your membership in the Program at any time without notice to you. We also reserve the right to delete User Accounts in our sole discretion. Limit one User Account per person and one User Account per email.
The Company may, at its sole discretion, offer a Subscription Program for a limited period of time at no charge (a “Free Trial”). Company reserves the right to modify the terms and conditions of a Free Trial offer or cancel any Free Trial at any time without notice. You may be required to enter your billing information in order to sign up for the Free Trial. You will not be charged for the Program until the Free Trial has expired. On the last day of the Free Trial period, unless you cancel your Subscription Program, you will be automatically charged the applicable subscription fees for the type of subscription you have selected.
AS A MEMBER OF OUR SUBSCRIPTION PROGRAM, THE VALID CREDIT CARD NUMBER YOU PROVIDED AT THE TIME OF YOUR INITIAL PURCHASE AND ENROLLMENT WILL BE AUTOMATICALLY CHARGED ON A PERIODIC AND RECURRING BASIS, DEPENDING ON THE TYPE OF PLAN YOU SELECT WHEN PURCHASING THE SUBSCRIPTION PROGRAM. AT THE END OF EACH SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW UNDER THE SAME TERMS AND CONDITIONS UNLESS CANCELED BY YOU OR COMPANY. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN OUR SUBSCRIPTION PROGRAM, YOU MUST DO SO THROUGH YOUR ACCOUNT PAGE ON THE WEBSITE OR THROUGH THE DISTRIBUTION SERVICE OPERATED AND DEVELOPED BY APPLE INC. (APPLE APP STORE), GOOGLE INC. (GOOGLE PLAY STORE), OR OTHER DISTRIBUTION SERVICE IN WHICH THE APPLICATION HAS BEEN DOWNLOADED (“Application Store”).
It is your responsibility to provide current, complete, and accurate information for billing in your User Account. You are responsible for promptly updating all information to keep your billing information current, complete, and accurate (e.g., change in billing address, credit card number, credit card expiration date, or telephone number). You must promptly notify us if your credit card information is canceled or is no longer valid (e.g., loss or theft). Changes to such information can be made through the Website or through the pertinent Application Store. If your credit card fails to process for a shipment, your membership in our Subscription Program may be terminated. Company may seek pre-authorization of your credit card prior to your purchase to verify that credit card is valid and the necessary funds or credit is available to cover your purchase.
Company reserves the right, in its sole discretion, to modify subscription fees at any time. Company will provide you with reasonable notice prior to charging you any increased subscription fee, but not later than 3 day prior to your next billing cycle. Your continued use of the Services after the effective date of the subscription fee modification constitutes your assent to pay the modified subscription fee amount for all subsequent billing cycles until the Services have been canceled or terminated by you or Company. Except where required by law, subscription fees are non-refundable. Certain refund requests for subscriptions may be considered by the Company on a case-by-case basis and granted at the sole discretion of the Company.
Registration, Usernames, and Passwords. You may need to register to use all or part of the App or Website. We may reject, or require that you change, any username, password or other information that you provide to us in registering. Your username and password are for your personal use only and should be kept confidential; you, and not Company, are responsible for any use or misuse of your username or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your username, password or User Account. You are limited to one active User Account, and you may not use the account of any other Company user at any time.
Your cooperation is imperative in safeguarding your personal information. Choose your User Account password carefully, as anyone with access to your User Account password will be able to assume your online identity and view your personal information, change your personal or User Account information, and communicate with Company. It is your responsibility to prevent disclosure of your password to others, and to change your password if you feel that its security has been compromised. You may change your password through the Website or App. You will periodically receive correspondence from Company at the email address you register with your account. Accordingly, it is critical that you safeguard your designated email address and restrict access thereto. The registration of an email address with your account indicates your consent for Company to transmit your personal information, including User Account information, to such address.
Consent to Communications, Acknowledgements
Messaging. By entering into this Agreement, you agree to receive communications from Company, which may include emails, text messages, voice calls, and push notifications (“Communications”). Voice calls and text messages, if any, (if you opt in to receive text messages) will be to the phone number you have supplied in your User Account. You agree that text messages may be made using automatic dialing systems or other automated technologies. Communications from or on behalf of Company may include but are not limited to: operational communications concerning your User Account or use of the Company’s products and platform; informational communications concerning shipping, your payment method on file, and reminders to complete your User Account set-up; marketing content such as updates concerning new and existing products; and communications concerning promotions run by us or our third-party partners. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. Your agreement to receive Communications is not a condition of any purchase. If you wish to opt out of promotional emails, you can unsubscribe by following the unsubscribe options in the promotional email itself.
Acknowledgement. You understand that the Website, Services, and Products (as “Products” is defined herein) are meant to facilitate improved sleep and general health benefits, and are not for meant as treatment for any medical condition. You understand that the Website and Services are not a substitute for the treatment or advice of your primary care physician or any other qualified healthcare professional. You understand that you should never delay seeking advice from your primary care physician or any other health professionals due to any information provided (or the omission of any such information) by Company, the Website, Services, or Products, and that the Website, Services, or Products are not to be used in connection with medical emergencies.
Rules of Conduct. In connection with the Services, App, Website, and Products, you must not:
Post, transmit or otherwise make available through or in connection with the Website. App, or social media sites any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
Post, transmit or otherwise make available through or in connection with the Website any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
Allow, enable, or otherwise support the transmission of unsolicited or unauthorized advertising, junk or bulk email (SPAM), chain letters, letters relating to a pyramid scheme, or any other unsolicited commercial or non-commercial communication.
Use the Website or Services for any commercial purpose or for any purpose that is fraudulent or otherwise unlawful.
Create a false identity for the purpose of misleading others, impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity.
Harvest or collect information about users of the Website, App, or Services.
Interfere with or disrupt the operation of the Services or the servers or networks used to make the Website and App available, including by hacking or defacing any portion of the Website; or violate any requirement, procedure or policy of such servers or networks.
Restrict or inhibit any other person from using the Website or Services.
Infringe the patent, trademark, trade secret, copyright or other intellectual property or other rights of another person or entity.
Reverse engineer, decompile or disassemble any portion of the App, Website, or Services, except where such restriction is expressly prohibited by applicable law.
Frame or mirror any portion of the Website, or otherwise incorporate any portion of the Website into any product or service, without Company’s express prior written consent.
Remove any copyright, trademark or other proprietary rights notice from the Website.
Systematically download and store App or Website content.
Attempt to disable, bypass, modify, defeat or otherwise circumvent any security related tools incorporated into or used in connection with the App or Website.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Website content, or reproduce or circumvent the navigational structure or presentation of the Website, without Company’s express prior written consent.
“Frame” or “mirror” any Company content which forms part of the Website, place pop-up windows over its pages, or otherwise affect the display of its pages.
You shall notify Company immediately if you become aware of any inaccuracies, errors, omissions or inconsistencies in the information or content provided through the App or Website and to comply with any corrective action taken by Company. You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the App, Website, and Services.
We reserve the right to investigate any transactions, activity, or interaction with our Website, Services, or Product(s) that we believe, in our sole discretion, is abusing or has abused the Terms, Services, or Product(s). We reserve the right to cancel any order, shipment, and/or terminate any User Account that we believe, in our sole discretion, is abusing or has abused the Terms, Services, or Product(s), including, without limitation, by engaging in a pattern of creating multiple accounts. Any failure to comply with this Agreement, any fraud or abuse, or any misrepresentation of any information furnished to Company by you or anyone acting on your behalf may result in the termination of your User Account. If Company has any reason to suspect fraudulent activity is associated with your User Account, Company reserves the right to delay or withhold Products and/or Services. Company decisions are final.
Products. Company may make available listings, descriptions and images of goods or services or related coupons, discounts or trials of goods or services (collectively, “Products”), as well as references and links to Products. The availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. Company does not guaranty the accuracy or completeness of any Product description, including price, product images, specifications, or availability. Product descriptions and prices are subject to change at any time without notice. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any Product. Company reserves the right to limit any initial trial offers to new subscribers. Any discount, coupon, promotion, trial, and/or other modification to subscription pricing is non-transferable, not redeemable for cash or cash equivalent, and may only be redeemed online in your User Account.
Company reserves the right to determine the pricing of its Products. Company will make reasonable efforts to keep pricing information published on the App and Website up to date. We encourage you to check our App or Website periodically for current pricing information. Company may change the fees for any feature or product, including additional fees or charges, if Company provides advance notice of changes before they apply. Company, at its sole discretion, may make promotional offers with different features and different pricing to any of Company’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
Purchase of products for resale (to other consumers, businesses, or third parties) is strictly prohibited. If Company believes you are involved in purchase for resale, Company reserves the right to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, and/or suspend or close your User Account.
Transactions. Company may make available the ability to (i) purchase subscriptions and (ii) purchase or otherwise obtain certain Products through the App or Website, including trials of goods or services (both (i) and (ii) referred to as a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. You represent and warrant that you have the right to use any credit card or other payment information that you submit in connection with a Transaction. By submitting such information, you hereby authorize Company to charge you and grant to us the right to provide such information to third parties for purposes of facilitating Transactions, including through Company’s third-party payment processing service. Verification of information may be required prior to the acknowledgment or completion of any Transaction. Your payment method may require validation or authorization of the Transaction. Company will not be liable for any delay or non-delivery of any order caused by non-receipt of the required validation or authorization. If your payment method fails or fees associated with your User Account are past due, we may collect fees owed using other collection mechanisms, include charging other payment methods on file (including with our payment processor) and/or retaining collection agencies and legal counsel. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner. We reserve the right to change the types of Transactions for which we charge. Trials and subscriptions of Products or Services are subject to the terms and conditions applicable to such trials and subscriptions available on the App or Website.
Company reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, trial, or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Product. You agree to pay all charges incurred by you or on your behalf through the App or Website, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Product or Service.
Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the App or Website. All Transactions are made pursuant to a shipment contract, and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
We reserve the right to refuse or cancel your order at any time for certain reasons including but not limited to Product availability, errors in the description or prices for goods, other errors in your order, or if we suspect the order is the result of an unauthorized or illegal transaction.
Order Cancellation, Returns. Refunds and exchanges will be subject to Company’s applicable refund and exchange policies, which is incorporated herein by reference (accessible at https://www.theoriginalsleep.com).
Promotions. Any sweepstakes, contests, raffles, surveys, games or similar promotions (collectively, “Promotions”) made available through the App or Website may be governed by rules that are separate from this Agreement. If you participate in any Promotions, please review the applicable rules as well as our Privacy Notice. If the rules for a Promotion conflict with this Agreement, the Promotion rules will govern.
Feedback. You assign Company all rights, title, and interest to all feedback, comments, and suggestions for improvements that you provide to Company, whether for the App, Website, Services, or for any other reason (collectively “Feedback”). If for any reason such assignment is ineffective, you hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Ownership. Company owns the App, Website, and Services, including the software, code, proprietary methods, systems, content and any other intellectual property or proprietary rights used to operate the Website, App, or Services (the “Intellectual Property”), which is protected by proprietary rights and laws. The Intellectual Property also includes our copyrights, trade names, trademarks and service marks, and any associated logos. All Intellectual Property on the Website not owned by us is the property of its respective owners. You may not use Intellectual Property in connection with any product or service that is not ours, or in any manner that is likely to cause consumer confusion. Nothing contained on the App or Website should be construed as granting any right to use any Intellectual Property without the express prior written consent of the owner.
Third Party Materials, Links. Certain Website or App functionality may make available access to information, products, services and other materials made available by third parties (“Third-Party Materials”), or allow for the routing or transmission of such Third-Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third-Party Materials. We neither control nor endorse, nor are we responsible for, any Third-Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third-Party Materials, or any intellectual property rights therein. Certain Third-Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Company with respect to any Third-Party Materials. We have no obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Website or App at any time. In addition, the availability of any Third-Party Materials through the Website does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider. YOUR USE OF THIRD-PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY MATERIALS). COMPANY ACCEPTS NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF ANY THIRD-PARTY WEBSITES OR SERVICES.
Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE APP, WEBSITE, SERVICES, AND ANY PRODUCTS OR SERVICE AND THIRD-PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE WEBSITE AND ANY PRODUCTS OR SERVICES AND THIRD-PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
YOU UNDERSTAND AND AGREE THAT ANY INFORMATION, PRODUCTS, OR SERVICES OBTAINED THROUGH THE USE OF THE APP OR WEBSITE ARE OBTAINED AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM THE USE THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
All disclaimers of any kind are made for the benefit of Company and its agents, members, shareholders, directors, officers, employees, agents, representatives, and licensors. While Company will try to maintain the timeliness, integrity, and security of the App and Website, we do not guarantee that the App or Website are or will remain updated, complete, correct, or secure, or that access to the App or Website will be uninterrupted. The App or Website may include inaccuracies, errors, and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the App or Website. If you become aware of any such alteration, contact email@example.com with a description of such alteration and its location on the App or Website.
Limitation of Liability. To the fullest extent permitted under applicable law: (a) Company will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability, or other theory, including damages for loss of profits, use or data, loss of other intangibles, loss of security of submissions (including unauthorized interception by third parties of any submissions), even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, Company will not be liable for damages of any kind resulting from your use of or inability to use the App, Website, or Services or from any products or Third-Party Materials, including from any virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the App, Website or any Products or Third-Party Materials is to stop using the website; and (d) the maximum aggregate liability of company for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of (1) the total amount, if any, paid by you to Company to use the App, Website, or Services and (2) one hundred U.S. dollars ($100). If you are dissatisfied with any portion of the App, Website, the Products, or this Agreement, your sole and exclusive remedy is to discontinue use of the App, Website, and/or Products or Services. All limitations of liability of any kind (including in this section and elsewhere in this agreement) are made for the benefit of Company and its respective successors and assigns. Certain states may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations of liability may not apply, and you may have certain additional rights.
Indemnity and Release. To the fullest extent permitted under applicable law, you agree to defend, indemnify, and hold harmless Company and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the App or Website; and (b) any violation or alleged violation of this Agreement by you
Termination, Reservation of Rights. This Agreement is effective until terminated. You may deactivate your User Account at any time, for any reason, by sending an email to firstname.lastname@example.org. Company may terminate, discontinue, cancel, suspend, change or limit your use of the App, Website, or Services at any time and without prior notice, for any or no reason, including if Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or if any amounts due by you to Company are past due. Upon any such termination or suspension, your right to use the Website will immediately cease, and Company may, without liability to you or any third party, immediately deactivate or delete your username, password, and User Account, and all associated materials, without any obligation to provide any further access to such materials. To the maximum extent allowed by law, each of your obligations under this Agreement shall survive the expiration or termination of this Agreement. Any termination or discontinuance of the App, Website, or Services pursuant to the provisions set forth in this Section shall be subject to compliance with any notice or waiting period provided by applicable law. You agree that Company will not be liable to you or to any third party for any modification, suspension, or termination of your ability to use the App, Website, Services, or Product(s). If you are dissatisfied with any aspect of the App, Website, Services, or Product(s) at any time, your sole and exclusive remedy is to cease participating in the App, Website, Services, and Product(s). Termination will not prejudice either you or our remedies at law or in equity.
Dispute Resolution, Governing Law.
Generally. In the interest of resolving disputes between you and Company in the most expedient and cost-effective manner, and except as Set forth in Section 19(b) below, you and Company agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, your use of the App, Website, Services, and our communications with you, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Except as set forth in Section 19(a), nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Company shall be administered by JAMS (Seattle) pursuant to its Streamlined Arbitration Rules and Procedures then in effect. If the parties are unable to agree on a single arbitrator, the then current manager of JAMS (Seattle) shall appoint the arbitrator. If you commence arbitration in accordance with this Agreement, Company will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Seattle, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Notice of Arbitration, Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Company’s address for Notice is 22722 29TH Drive SE, Suite 10, Bothell, WA 98021-4420. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Company may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or by Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
No Class Actions. You and Company agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. If Company makes any future change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Company’s address for Notice of Arbitration.
Enforceability. If Section 19(e) is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue to resolve any dispute arising out or related to this Agreement shall be the state or federal courts in Seattle, Washington.
Opt Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section within 30 calendar days after the date that you agree to these Terms by sending an to Company at email@example.com. In order to be effective, the letter must be received by Company within 30 calendar days of your acceptance of these Terms and your letter must specify: your full legal name, your current residential address, the email address associated with your User Account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”)
Except as explicitly stated otherwise in these Terms, this Agreement will be governed and construed in accordance with the laws of the State of Washington, without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action related to this Agreement will be the state and federal courts located in the King County, Washington, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. We operate the App, Website, and Services from our offices in Washington, and make no representation that they are appropriate or available for use in other locations.
Information or Complaints. If you have a question or complaint regarding the App, Website, Product(s), or Service(s), please send an e-mail to firstname.lastname@example.org. You may also contact us by writing addressed to 22722 29TH Drive SE, Suite 10, Bothell, WA 98021-4420. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us.
Copyright Claims Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Website infringe your copyright, you (or your agent) may send to Company a written notice by mail or e-mail, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Company at 22722 29TH Drive SE, Suite 10, Bothell, WA 98021-4420 or by email to email@example.com. Company’s DMCA agent’s phone number is (425) 505-3599.
Notice to New Jersey Residents. If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitation on liability for loss of profits or loss or use of data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under any contract, tort (including negligence), strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnity Company (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the Washington governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
Translation. These Terms may have been translated. If the Company has made them available to you in any language other than English, you agree that the original English text shall prevail in the event of a conflict of terms.
Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Company. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction, including, without limitation, those rights or obligations relating to your User Account and any information that you provide or that has been provided on your behalf to Company or that has been collected by Company in connection with Company’s business operations or through the Website. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” To the extent there is a conflict between the provisions in this Agreement and any Additional Terms incorporated herein by reference, the latter shall have precedence. This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Website or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation or any delay in performing any of its obligations, if the delay or failure was due to any cause beyond Company’s reasonable control including but not limited to severe weather, power, or other utility cut-off, natural disaster, strikes, governmental action, epidemic, pandemic, terrorism, war, civil unrest, or other similar events of “force majeure”.