3. Intellectual Property Rights. The Site, including its text, audio, video, graphics, charts, photographs, interfaces, icons, other content, software, computer code, data, trademarks, logos, slogans, names of products and services, documentation, other components, and the design, selection, and arrangement of content is exclusively the property of CuddlePedic or, as applicable, its suppliers and licensors, and is protected by copyright, trademark, and other intellectual property laws. Any unauthorized use of any trademarks, trade dress, or any other intellectual property belonging to CuddlePedic or any third party is strictly prohibited and may be prosecuted to the fullest extent of the law. The Site may contain references to third-party marks and copies of third-party copyrighted materials, which are the property of their respective owners. All rights not expressly granted herein are reserved by CuddlePedic and its licensors.
5. Feedback. CuddlePedic welcomes comments regarding the Site, including any products or services available through the Site (“Feedback”). If you submit any Feedback to us regarding the Site, you are granting to CuddlePedic a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display (publicly or otherwise) such Feedback, in any medium or format, and that such Feedback will not be considered or maintained as confidential. We may use any feedback that you send us in our discretion and without attribution or compensation to you.
7. Customer Communications. You consent to being contacted by phone or text message with information or questions about your account(s) and/or order(s) to any telephone number you have previously provided to CuddlePedic. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. CuddlePedic may use such means of communication described in this section even if you will incur costs to receive such messages, text messages, e-mails or other means, which may occur. You can stop receiving SMS messages (including text messages) at any time by replying “STOP” to any message you receive from us and we may send you a message confirming your election. For customer support from CuddlePedic please call us at 936-209-4800 or email at email@example.com . Message and data rates may apply and message frequency may vary. Carriers are not liable for delayed or undelivered messages.
8. Purchase Information. If you submit payment information that is incorrect or invalid, your payment will not be processed. We have no responsibility or liability if your payment method is declined by your financial institution or any third party financing company. Payments are processed by our third-party payment processor. Refunds, if available, are solely the responsibility of CuddlePedic and are at CuddlePedic’s sole discretion.
9. Merchandise Availability. The prices and availability of merchandise on the Site may change at any time without notice to you. Merchandise prices and selection may vary from region to region. Availability of merchandise may be limited and merchandise may not be available for immediate delivery.
10. NO WARRANTY.
A. SOME MERCHANDISE SOLD VIA THE SITE COMES WITH A LIMITED 3 YEAR WARRANTY.
B. THE SITE IS PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY OF ANY KIND. ACCURACY OF INFORMATION ON THE SITE CANNOT BE GUARANTEED. CUDDLEPEDIC DOES NOT GUARANTEE THE QUALITY, COMPLETENESS, TIMELINESS, OR AVAILABILITY OF THE SITE. CUDDLEPEDIC DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS IN THE SITE WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL CONDITIONS OR COMPONENTS.
C. CUDDLEPEDIC IS NOT RESPONSIBLE FOR ANY TYPOGRAPHICAL ERRORS ON THE SITE. WE RESERVE THE RIGHT TO REVOKE ANY STATED OFFER AND TO CORRECT ANY ERRORS, INACCURACIES OR OMISSIONS INCLUDING AFTER AN ORDER HAS BEEN SUBMITTED AND WHETHER OR NOT THE ORDER HAS BEEN CONFIRMED AND YOUR CREDIT CARD CHARGED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUDDLEPEDIC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE, INCLUDING WITHOUT LIMITATION THOSE REGARDING AVAILABILITY, QUALITY, ACCURACY, FITNESS FOR ANY USE OR PURPOSE, COMPATIBILITY WITH ANY STANDARDS OR USER REQUIREMENTS, TITLE, AND NONINFRINGEMENT. IN CERTAIN JURISDICTIONS, THE LAW MAY NOT PERMIT THE DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
D. CUDDLEPEDIC HAS NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATION. YOUR USE OF THE SITE IS AT YOUR OWN RISK AND YOU ALONE ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER HARDWARE, SOFTWARE, SYSTEMS, AND NETWORKS, ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY INFORMATION FROM THE SITE, AND FOR ANY OTHER DAMAGE THAT MAY BE INCURRED. WE MAKE NO REPRESENTATION THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OTHER THAN THE UNITED STATES. IF YOU CHOOSE TO ACCESS THE SITE FROM LOCATIONS OTHER THAN THE UNITED STATES, YOU DO SO AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR COMPLYING WITH APPLICABLE LAWS AND REGULATIONS. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM RTG OR IN ANY MANNER FROM THE SITE CREATES ANY WARRANTY.
11. NO LIABILITY.
A. IN NO EVENT WILL CUDDLEPEDIC OR ANY OF ITS PARENTS, SUBSIDIARIES, DIVISIONS, SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, LICENSORS, PREDECESSORS, SUCCESSORS, OR ASSIGNS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, OR ANY OTHER LOSS OR DAMAGE OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR DIRECT OR INDIRECT USE OF THE SITE (INCLUDING, WITHOUT LIMITATION, THE INPUT OF PERSONALLY IDENTIFIABLE AND OTHER INFORMATION INTO THE SITE), WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, AND EVEN IF CUDDLEPEDIC HAS EXPRESS KNOWLEDGE OF THE POSSIBILITY OF THE LOSS OR DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP ACCESSING AND USING THE SITE.
C. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF PURSUANT TO APPLICABLE STATE LAW, THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PERMITTED, THE LIABILITY OF CUDDLEPEDIC, THIRD PARTY CONTENT PROVIDERS, AND THEIR RESPECTIVE AGENTS, SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF NEW JERSEY LAW APPLIES, EXCLUSIONS AND LIMITATIONS OF LIABILITY FOR INTENTIONAL OR RECKLESS ACTS, GROSS NEGLIGENCE, NEGLIGENCE, AND STRICT LIABILITY DO NOT APPLY.
13. Copyright. CuddlePedic asks that its users respect the rights of intellectual property owners. If you believe that your work has been copied on the Site in a way that constitutes infringement, you agree to provide CuddlePedic the following information in the form prescribed by Section 512 of Title 17, United States Code:
A. A description of the copyrighted work or works that you claim have been infringed;
B. A description of the allegedly infringing material, including its location on the Site;
C. Your address, telephone number, and email address;
D. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
E. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
F. An electronic or physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
CuddlePedic’s Copyright Agent for notice of claims of copyright infringement on the Site is: firstname.lastname@example.org; Copyright Agent, CuddlePedic LLC, 19518 Shady bank Dr, Tomball, Tx 77375.
16. Dispute Resolution/Arbitration Agreement.
You and CuddlePedic waive the right to a trial by jury and any right to have a Dispute heard in court. In arbitration, Disputes are resolved by a neutral arbitrator instead of a judge or jury, discovery is more limited than in court, and the arbitrator’s decision is subject to limited review by courts. The arbitrator can award on an individual basis the same damages and relief as a court, including monetary damages, injunctive relief, and declaratory relief. Judgment on the arbitrator’s award may be entered in any court having jurisdiction thereof. A single arbitrator with the American Arbitration Association (“AAA”) will conduct the arbitration, and the award may not exceed the relief allowed by applicable law. The arbitration will be conducted in the county of your residence or another mutually agreed location. The AAA’s Consumer Arbitration Rules will apply. If AAA will not apply those rules, then AAA’s Commercial Arbitration Rules will apply. The AAA’s rules and a form that can be used to initiate arbitration proceedings are available at http://www.adr.org. You and CuddlePedic agree that if for any reason AAA will not conduct or becomes unavailable to conduct the arbitration, then a court may appoint a substitute arbitrator, and further agree that the choice of AAA as a forum is not integral to the Agreement.
B. Arbitration Class Action Waiver. You and CuddlePedic agree that the arbitration will be conducted solely on an individual basis and not on a class, representative, consolidated, or private attorney general basis. A Dispute may not be consolidated with a claim brought or discovery by any person or entity that is not a party to the arbitration proceeding. The arbitrator may not award relief to any person or entity other than a party to the arbitration proceeding and may only award such relief as is necessary to provide relief to a party to the arbitration proceeding. If a court deems any portion of this Section B invalid or unenforceable, then Sections A and C of the Agreement will be null and void.
C. Fees and Costs in Arbitration. If your total damage claims are $25,000 or less, not including your attorneys’ fees: (1) the arbitrator may award you your reasonable attorneys’ fees, expert fees, and costs if you prevail in the arbitration; (2) the arbitrator may not award CuddlePedic its attorneys’ fees, expert fees, or costs unless the arbitrator determines that your claim was frivolous or brought in bad faith; and (3) CuddlePedic will bear all filing fees and administrative fees and either reimburse you for any such fees that AAA requires you to pay upon initiating arbitration or, if you send a written request to Legal Department, 19518 Shady Bank Dr, Tomball, Tx 77375 before you initiate arbitration, CuddlePedic will pay to AAA any such fees that AAA requires to be paid upon initiation of arbitration. If your total damage claims are more than $25,000, not including your attorneys’ fees, then the arbitrator may award the prevailing party all or a portion of its reasonable attorneys’ fees, expert fees, and costs. In arbitrations conducted under AAA’s Consumer Arbitration Rules, (a) CuddlePedic will bear the arbitrator’s fees and expenses, and (b) where no disclosed claims or counterclaims exceed $25,000, the Dispute shall be resolved by the submission of documents only/desk arbitration, except that any party may ask for a hearing or the arbitrator may decide that a hearing is necessary. Except as otherwise provided herein, all filing fees, administrative fees, and arbitrator fees and expenses will be paid in accordance with the applicable AAA rules.
D. Non-Arbitration Class Action and Jury Waiver. You and CuddlePedic agree that if for any reason a Dispute proceeds in court rather than arbitration: (1) you and CuddlePedic waive any right to a jury trial; (2) the Dispute will proceed solely on an individual, non-class, non-representative basis; and (3) neither you nor CuddlePedic may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.
E. Severability. If any part of this Agreement is found invalid or unenforceable, then the other parts of the Agreement shall remain in full force and effect, except that if any part of Section B is found invalid or unenforceable, then Sections A and C of the Agreement will be null and void, and the other parts of the Agreement shall remain in full force and effect.
20. Electronic Communications. These Terms and any other documentation, agreements, notices, or communications between you and CuddlePedic may be provided to you electronically to the extent permissible by law. Please print or otherwise save a copy of all documentation, agreements, notices, and other communications for your reference.