Terms of service

Effective Date: 07/01/2022

Last Updated: 07/18/2022

Terms of Service

Welcome to the Calleo Logowear (“Company”) website located at www.calleo.com (and the services made available through same (together, the “Website”)). By accessing or using the Website, you indicate that you have read and understand this Terms of Service Agreement (the "Terms of Service"), which incorporates by reference our Privacy Policy, and agree to be legally bound by it.  Our Privacy Policy is located at https://calleo.com/privacy  You must accept this Terms of Service in its entirety to use the Website.  If you do not understand or have questions about the Terms of Service, immediately stop all use of the Website and contact sales@calleo-usa.com. If you do not accept this Terms of Service, you may not use the Website.  Your continued use of the Website constitutes your agreement to the most current version of this Terms of Service.  If at any time you do not agree to this Terms of Service, you must cease your use of this Website.

The Terms of Service apply only to the Website and do not apply to any other websites or applications that are linked to the Website.  For access to the terms and conditions or privacy policies of any other websites or applications, please refer to the policies of such websites or applications.  The Terms of Service are subject to change at any time by us, without prior notice to you, by our posting them on the Website.  It is your obligation to review the Terms of Service before accessing the Website.  Any changes to the Terms of Service will be effective immediately upon our posting them to the Website, unless otherwise stated. We reserve the right to change the contents of the Website at any time, with or without notice.

I. Termination Of Access

 Use of this Website is a privilege. Users who violate this Terms of Service may be denied access to the Website, and we reserve the right to suspend your use of the Website for any reason at any time, in our sole discretion. The Website and its contents are only intended for the use of children under the age of 18 in strict compliance with our Privacy Policy, and at all times, only under the supervision of a parent or legal guardian who is at least 18 years of age, and who agrees to be bound by, and responsible for, action taken on the Website.

 

You are not permitted to use or access this Website if you are in the European Union, the European Economic Area, the United Kingdom, Japan, South Korea or any other location which prohibits us, or limits us, from obtaining personal information from you in accordance with these Terms of Service.

II.Definitions 

For the purposes of this Terms of Service, the following definitions apply: 

 

“Affiliates” refers to companies and divisions under the ownership of the Company or that own the Company.

 

"Content" includes all Text, Graphics, Design and Programming used on the Website. 

 

"Graphics" includes all logos, buttons, and other graphical elements on the Website, including the color combinations and the page layout of the Website, with the exception of trademarks and intellectual property belonging to third-parties and displayed with permission. 

 

"Programming" includes, but is not limited to, both client-side code (including but not limited to HTML, PHP, JavaScript, etc.) and server-side code (including but not limited to Active Server Pages, VBScript, databases, etc.) used on the Website. 

 

"Text" includes all text on every page of the Website, whether editorial, navigational, or instructional. 

 

"User" or “you” or “your" refers to any individual who uses or accesses any aspect of the Website or its services.

 

III.Use Of This Website

The online store at the Website is hosted by Deconetwork, which provides the Website with its e-commerce platform which allows the Company to sell its products and provide its services to you as set forth herein.  You may also be subject to separate terms of service and privacy policies imposed by Deconetwork.  Please learn more at https://www.deconetwork.com/terms-of-service/ . 

 

We reserve the right to refuse to provide services to anyone for any reason at any time. You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over our networks. Our use of your credit card information is additionally subject to our Privacy Policy. The headings used in this Terms of Service are included for convenience only and will not limit or otherwise affect this Terms of Service.

 

All usage of the Website is at your own risk.

 

Account Registration

You are permitted, but not required, to create an account with us.  An account will allow you to store addresses and view order history. Your use of the account, like your use of the Website shall be subject to our Privacy Policy https://calleo.com/privacy . In creating an account or providing information to us in any manner, you agree to provide only true, accurate, current, and complete information, and you represent and warrant that you are at least 18 years old and, as applicable, the legal guardian of any minor whose information you provide.  By registering for an account, you grant us permission to send emails, offers, promotions and other marketing material to you via email and/or text concerning our Services and related services we reasonably believe you may be interested in.  You may unsubscribe at any time by clicking the unsubscribe link present in the footer of every promotional email.

 

Account Information

You must keep your account information up-to-date and accurate at all times, including a valid email address and mobile number.  

You are responsible for maintaining the security of your account and password, and you are fully responsible for all activities and actions that occur in connection with the account. You agree to protect your password by, among other things, keeping your password and other information relating to your account confidential. If, notwithstanding the foregoing obligation, you allow another party to use your account, you will be responsible for all use of the Website by the party using your account, and agree to indemnify the Company against any loss or damages suffered as a result thereof. You must immediately notify us of any unauthorized uses of your account or any other breaches of security. We will not be liable for any acts or omissions by you, including but not limited to any damages of any kind incurred as a result of such acts or omissions.

 

IV. Acceptable Use Of The Website 

The Website and its services are intended to provide information about our goods and products including our merino wool apparel and other accessories, and provide the information identified and contained on the website and to provide services related thereto, including handling sales, returns and inquiries.  The Website may be used in a manner consistent with this purpose, and only within the context of the information set forth on the Website. 

 

You may not collect or use any portion of the content of this Website in any derivative way, or download, or copy information or other matter for use of any other party.  You may not gather information and data on the Website from mining, robots, or other extraction tools.  The information displayed on the Website may not be used for any purpose except in connection with your direct use of the Website as permitted by this Terms of Service, and may not be excerpted, summarized, duplicated, or otherwise removed from the Website except with our explicit, written permission.  In addition, you represent, warrant, and agree that you will not use (or plan, encourage or help others to use) the Website for any purpose or in any manner that is prohibited by this Terms of Service or by applicable law.  You also may not interfere with the proper operation of the Website including, but not limited to, by attacking, hacking into, or otherwise attempting to penetrate any non-publicly accessible elements of the Website or its servers or network, through the use of bots, Trojan Horses, viruses, DNS attacks, or other technology which is designed or intended to interfere with the proper operation of the Website or the use of the Website by any Users.  You agree that you will not circumvent or attempt to circumvent any security or access control technology implemented on the Website, or the servers and network associated with the Website.  Any unauthorized use terminates the permission or license granted by the Company, in addition to all rights at law or in equity.

 

You are specifically prohibited from posting, sending, submitting, publishing, or transmitting in connection with this Website any material that is unlawful or for illegal activity. You agree not to use this Website to do any of the following:

 

• upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
• upload, post, email, transmit, submit, share, or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• upload, post, email, transmit, submit, share, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
• upload, post, email, transmit, submit, share, or otherwise make available information that is known by you to be untrue, false or misleading or which does not fairly or accurately depict or describe the subject matter which is the subject of the information posted by you;
• upload, post, email, transmit, submit, share, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
• upload, post, email, transmit or otherwise make available any material that contains software viruses, or any other computer or application code, files or programs designed to interrupt, destroy or limit the functionality of any device software or hardware or telecommunications equipment, or intercept, download or transmit unauthorized data;
• use the Website, or other activities to “stalk” or otherwise harass or harm another, or improperly access another’s information;
• advocate illegal activity or an intention to commit an illegal act;
• impersonate or misrepresent your connection to any other entity or person or otherwise manipulate identifiers to disguise the origin of the content;
• advertise or otherwise engage in any commercial endeavor without the Company’s explicit, written permission;
• use the Website in any manner that could damage, disable, overburden, or impair any server, or network(s) connections, disobey any requirements, procedures, policies or regulations of networks connected to the Website or interfere with any other party's use and enjoyment of the Website;
• attempt to gain unauthorized access to the Website, other accounts, computer systems or networks connected to any Company server, through hacking, password mining or any other means or obtain or attempt to obtain any materials or information through any means not intentionally made available through the Website;
• intentionally or unintentionally violate any applicable local, state, national or international law; and
• provide or attempt to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act.

 

 

V. PRODUCTS AND BILLING 

You may purchase our goods and products on or through the Website. These goods and products may have limited quantities and are subject to return or exchange only according to our Return Policy (https://calleo.com/returns ). We have made every effort to display as accurately as possible the colors and images of our products that appear in person. We cannot guarantee that your computer monitor’s display of any color will be accurate or that the platform will display the goods and products accurately or that reflect the most recent changes to the goods and products. We reserve the right, but are not obligated, to limit the sales of our goods and products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any goods or products we offer. All descriptions of our goods or products or pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue the sale of any of our goods or products at any time. Any offer for any of the goods or products is void where prohibited by law or these Terms of Service. We do not warrant that the quality of any of our goods and services, or other material purchased or obtained by you will meet your expectations, be error or defect-free, or that any errors or defect any part of the goods or services will be corrected or that we will, or have any obligation to, make any effort to cure except as explicitly set forth in our Refund Policy (https://calleo.com/returns) Warranty (https://calleo.com/Guarantee).

 

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. You agree to provide current, complete and accurate purchase and account information for all purchases made at our online store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. We are under no obligation to you or any third party to ensure that your personal information aligns with credit card information submitted by you in connection with your purchase.

 

VI. Intellectual Property Rights 

The Company owns any and all intellectual property rights relating to the Company brand, trade name, trade dress, and other content including:  copyright, trademark, service mark, trade name, trade dress, proprietary logo, insignia, business identifier, and/or other Text and Graphics that has or provides the “look and feel” of the the Company brand image, as well as all of the Content, including the Text, Graphics, Programming, photographs, video and audio contained herein (the “Intellectual Property”). Your use of the Website does not grant you any rights or licenses relating to the the Company Intellectual Property, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, and other intellectual property and proprietary rights therein, except as expressly provided for in these Terms of Service.  None of the Intellectual Property may be used, reproduced, published, transmitted, distributed, displayed, performed, exhibited, modified, used to create derivative works, sold, re-sold or used in any sale, or exploited for in any way, in whole or in part, except as provided for herein and unless you obtain our prior written consent. You may not reproduce, modify, display, sell, or distribute the Intellectual Property, or use it in any other way for public or commercial purpose.  All other product names, names of services, trademarks, service marks and other intellectual property is the property of their respective owners, as indicated, and may only be used as permitted.

 

VII. Monitoring Of Information

We do not assume any obligation to review the content of any information submitted to the Website by Users, if any.  Each User assumes the risk of verifying the accuracy of information provided to the Company.  Notwithstanding the foregoing, the Company reserves the right to monitor the use of this Website to determine compliance with the Terms of Service or for any other purpose whatsoever. The Company further reserves the right to seek any remedy available at law or in equity for any violation of the Terms of Service.

 

The Company reserves the right to cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity of anyone using the Website or otherwise making available any materials that are believed to violate the Terms of Service or law. You agree to waive and indemnify and hold the Company harmless from and against any and all claims whatsoever resulting from or in connection with any action by the Company regarding any investigations either by the Company or law enforcement authorities.

 

VIII. Procedure for Making and Responding To Claims of Copyright Infringement

We will respond to claims of copyright infringement, and will promptly process and investigate notices of alleged infringement by third-parties and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”), Title 17, United States Code, Section 512(c)(2), where applicable. In keeping with the DMCA, notifications of claimed copyright infringement by third-parties should be sent to Website's designated agent noted below (the “Designated Agent”).  If you believe that your copyrighted work has been infringed under U.S. copyright law and is accessible on the Website, please notify us by contacting the Designated Agent.

 

In order to give effective notification of a claim of copyright infringement by a third-party under the DMCA, you must send a written communication to the Designated Agent that includes substantially the following: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work, or, if multiple copyrighted works are covered by a single notification, a representative list of such works on the Website, that are claimed to have been infringed; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and  information reasonably sufficient to permit the Company to locate the material; (4) information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted; (5) a statement that the complaining party has a good faith belief that neither the copyright owner, nor its agent nor the law has authorized the use of the material in the manner complained of; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

The Designated Agent for notice of claims of copyright infringement can be reached as follows:

 

E-mail Address:

sales@calleo-usa.com

Postal Address:

Calleo Logowear

PO Box 7069

Endicott, NY 13761 (United States)

Attention: PRIVACY OFFICER

 

If a valid notification of alleged copyright infringement is received, we will remove or disable access to the material identified in the notice as being infringing or as being the subject of infringing activity, and take reasonable steps to notify the person alleged to be infringing that the Company has removed or disabled access to this material. Please note that, under the DMCA, a claimant who makes a misrepresentation concerning copyright infringement may be liable for any damages, including costs and attorneys' fees, incurred by the person alleged to be infringing who is injured by such misrepresentation as a result of reliance upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing or in replacing the removed material or ceasing to disable access to it.

 

IX. Information You Provide to the Company via this Website 

If you choose to provide any personal information via this Website, the information will be used only for certain purposes, as described in our Privacy Policy. Additionally, we may collect or share certain information based on your usage of the Website, as described in our Privacy Policy.

 

X. Disclaimer of Warranties & Limitations of Liability

Your consent and agreement to the following disclaimers and limitations is a material inducement for us to permit you to access the Website.  Your use of the Website, and the obligations and liabilities of us in respect of your use of the Website, is expressly limited as follows:

Third-Party Websites

Notwithstanding the presentation of, or links to, any third-party information or website/app on the Website, no such presentation shall be considered an endorsement, guarantee, representation, or warranty, either express or implied, by us on behalf of any third-party.  We shall have no liability or responsibility whatsoever for the content, subject matter or substance of any information accessed or obtained from third-party websites accessed from or via the Website.  Access to third-party websites/apps from the Website is done at your own risk.  The Company makes no representations or warranties regarding any opportunities found via the Website.  Any such opportunities and information are provided “as is”, except to the extent otherwise set forth in a license or sale agreement entered into in writing between you and the Company or with respect to warranties that may be provided by the provider of the opportunity, if any.

 

Disclaimer of Endorsement and Liability

The representations, views, and opinions expressed or implied in any document or image included in, or linked to or from this site, do not necessarily state or reflect those of the Company unless we explicitly say so.  The Company does not endorse or recommend, and assumes no responsibility or liability for any actions, opinions, information or representations of any User, company or information contained on the Website, nor do we guarantee or assume liability for the accuracy, completeness or usefulness of any information maintained by us.

 

DISCLAIMER OF WARRANTIES

THE WEBSITE AND ITS CONTENT IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. WE DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. Your use of this Website and reliance on any of its content is at your own risk.  THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY INFORMATION PROVIDED ON THE WEBSITE.

 

THE COMPANY does not warrant that the functions or content contained in this Website will be uninterrupted, Accurate or error-free.  You and not THE COMPANY assume the cost of all necessary servicing, repair, or correction in the event that there is any loss or damage arising from or in connection with the use of this Website or its content. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION WHATSOEVER REGARDING USE, OR THE RESULT OF USE, OF THE CONTENT OF THIS WEBSITE RELATED TO ACCURACY, RELIABILITY OR OTHERWISE.  THE CONTENT OF THIS WEBSITE MAY INCLUDE ERRORS (INCLUDING, WITHOUT LIMITATION, TECHNICAL OR TYPOGRAPHICAL ERRORS), AND THE COMPANY MAY MAKE CHANGES OR IMPROVEMENTS TO THIS WEBSITE AT ANY TIME with or without notice.

 

NEITHER THE COMPANY NOR ANY OTHER PERSON OR ENTITY ASSOCIATED WITH THE DESIGN OR MAINTENANCE OF THIS WEBSITE SHALL BE HELD LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY DAMAGE, LOSS, INJURY, OR MALFUNCTION ASSOCIATED WITH YOUR USE OF THIS WEBSITE.

 

LIMITATION OF LIABILITY

IN NO EVENT SHALL THE COMPANY AND/OR ITS SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, SUPPLIERS, ADVERTISERS, SPONSORS, THIRD-PARTY SERVICE PROVIDERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR SPECIAL DAMAGES, (INCLUDING LOST PROFITS AND DAMAGES) WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM OR IN CONNECTION WITH YOUR USE OF THIS WEBSITE OR RELIANCE UPON ANY INFORMATION PROVIDED ON OR THROUGH THE WEBSITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATIONS SET FORTH IN THIS PARAGRAPH MAY NOT APPLY TO YOU. IF THE FOREGOING LIMITATIONS ARE HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE MAXIMUM LIABILITY OF THE COMPANY  TO YOU FOR ANY TYPE OF DAMAGES SHALL BE LIMITED TO THE TOTAL DAMAGES FOR WHICH THE COMPANY SHALL BE LIABLE SHALL BE LIMITED TO $100. 

 

Release and Indemnification

You, on behalf of your successors, assigns, heirs, and personal representatives hereby irrevocably and fully release the Company, and its subsidiaries, Affiliates and each of their officers, directors, employees, assigns, agents and representatives from and against any and all suits, claims, actions, causes of action, arbitration, liabilities, obligations, damages, losses, penalties or fines known or unknown, arising out of or in connection with (1) your use of this Website, or (2) the use of any information accessed by you from this Website.

You agree to indemnify and hold the Company and its subsidiaries, Affiliates, officers, agents, employees, partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees and costs of suit, made by any third-party due to or arising out of (1) your use of this Website, (2) information that you submit, transmit, or otherwise make available via this Website, or (3) your breach of this Terms of Service.

You agree to indemnify, defend, and hold us harmless from and against any and all liability, claims, causes of actions, damages, costs, and expenses, including but not limited to, attorneys’ fees and costs of suit, arising out of your breach of these Terms of Service.

 

Exclusions

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  THEREFORE, SOME OF THE EXCLUSIONS AND/OR LIMITATIONS STATED ABOVE MAY NOT APPLY TO YOU.

 

 

XI. SMS/MMS Mobile Message Marketing Program (the “MMS Terms”)

We may offer a mobile messaging program at https://calleo.com/contact  (the “Program”), which, if you subscribe, you agree to use and participate in subject to this Terms of Service, the MMS Terms and our Privacy Policy at https://calleo.com/privacy. By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. These MMS Terms are limited to the Program and are not intended to modify other Terms of Service Conditions or the Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt-In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an auto dialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “auto dialer”). Message and data rates may apply. Message frequency varies. 

User Opt-Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that the Company and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of digital and physical products, services, and events. Messages may include checkout reminders. 

Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at sales@calleo-usa.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-out requests must be submitted in accordance with the procedures set forth above.

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.

Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Age Restriction: The Website is not intended for use by anyone under thirteen (13) years old, and you may not enroll in the Program if you are under thirteen (13) years old.  If you are under eighteen (18) years of age (but over age thirteen (13)), you must have your parent’s or legal guardian’s permission to do so use the Program. By using or engaging with the Website or the Program, you acknowledge and agree that you are not under the age of thirteen (13) years, and if you are between the ages of thirteen (13) and eighteen (18), you have your parent’s or legal guardian’s permission to use or engage with the Program and/or the Website as applicable. By using or engaging with the Program, you also acknowledge and agree that you are permitted by your jurisdiction’s applicable law to use and/or engage the Program.

Dispute Resolution – Binding and Mandatory Arbitration: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, these MMS Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, exclusively and solely determined by arbitration in Endicott, New York before one arbitrator and shall be administered by JAMS (https://www.jamsadr.com/) under the JAMS Streamlined Arbitration Rules and Procedures.  Judgment on any award from such arbitration may be entered in any court otherwise have applicable personal jurisdiction.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction.

Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition JAMS to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. 

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, 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.  

Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents.  For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code.  You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us.  Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

 

XII. General Information

Entire Agreement. These Terms of Service, together with the Privacy Policy and our 100 Year Warranty, Refund Policy and Military Discount all as and to the extent explicitly set forth on the Website, constitutes the entire agreement between you and the Company governing your use of this Website, superseding any prior agreements between you and the Company with respect to this Website.

Waiver and Severability. The failure of the Company to enforce any right of the provisions in the Terms of Service shall not constitute a waiver of such right or provision.  If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, it shall not affect any other provision of the Terms of Service, and the Terms of Service shall be construed without regard to the invalid, illegal, or unenforceable provision.

Choice of Law; Jurisdiction; Venue. Your use of this Website and any dispute arising out of or in connection with this Website shall be governed by the laws of the State of New York without giving effect to any conflict of laws provisions. By accessing this Website, except as otherwise set forth in Section XI hereof, you agree that any action or proceeding arising out of or in connection with this Website shall be brought solely in a court of competent jurisdiction sitting in the State of New York. You agree to submit to the personal and exclusive jurisdiction of the courts located in New York. You hereby waive any defense of an inconvenient forum to the maintenance of any action or proceeding in other courts and any objection to venue with respect to such proceeding. 

Viruses and Transmission of Sensitive Information.  The Company cannot and does not guarantee or warrant that the materials contained on this Website will be free of viruses, worms or other code or related hazards that may have destructive properties (collectively “viruses”). It is your responsibility to ensure that you have sufficient procedures, firewalls, checkpoints, and safeguards within your device’s system to satisfy your requirements to protect against viruses. the Company does not assume any responsibility or risk for your use of the Internet, nor does the Company assume any responsibility for any products or services of, or hyperlinks to, third-parties.

Miscellaneous.  We do not represent that materials on the Website are appropriate or available for use in your location. Persons who choose to access the Website do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.  You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website must be filed within one (1) year after such claim or cause of action arose or be forever barred. If any provision of the Terms of Service or Privacy Policy is found to be unenforceable for any reason, then such provision shall be deemed deleted from the Terms of Service or the Privacy Policy, as the case may be, and shall not affect the validity or enforcement of any remaining provisions.