Tiny Earth Toys™ Terms of Service
Last Modified: October 4, 2021
Important Notice – Binding Arbitration: In the unlikely event that any dispute between you and us is not resolved by our customer service team or consultations between you and us, these Terms of Service require arbitration on an individual basis, rather than jury trials or class actions. Please see Section 22 below titled “Dispute Resolution; Binding Arbitration; Governing Law” to learn more.
1. Acceptance of the Terms of Service
These Terms of Service are entered into by and between you and Tiny Earth Toys, Inc., a Delaware corporation (“Company,” “we,” or “us”). The following terms and conditions, together with any policies they expressly incorporate by reference (collectively, “Terms of Service”), govern your access to and use of the website https://www.tinyearthtoys.com, any successor or subdomain thereof or any other website where we post these Terms of Service, including any content, functionality, and services offered on or through such sites (collectively, the “Website”), whether as a guest or a registered user. “You” are a user of our Website and/or our toy subscription services offered through our Website (our “Services”).
Please read these Terms of Service carefully before you start to use the Website or Services. By using the Website or Services, or by clicking to accept or agree to the Terms of Service when this option is made available to you, you accept and agree to be bound and abide by these Terms of Service. If you do not want to agree to these Terms of Service, you must not access or use the Website or Services.
This Website and our Services are offered and available to users who are 18 years of age or older only. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website or our Services.
The terms and conditions for our toy subscription packages and other toy procurement transactions placed on or through our Website or otherwise in connection with our Services are as set forth in our Toy Subscription Policies (“Toy Subscription Policies”).
3. Changes to the Terms of Service
We may revise and update these Terms of Service (including, for the avoidance of doubt, the policies incorporated by reference into these Terms of Service) from time to time in our sole discretion. Unless otherwise expressly provided in these Terms of Service or agreed to in writing by us, all changes are effective immediately when we post them and apply to all access to and use of the Website or Services thereafter. However, any changes to the dispute resolution provisions set out in Section 22 below titled “Dispute Resolution; Binding Arbitration; Governing Law” will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Website.
Except and only to the extent otherwise expressly provided in these Terms of Service or agreed to in writing by us, your continued use of the Website or Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.
4. Accessing the Website and Account Security
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website (including our Services), in our sole discretion and (except and only to the extent otherwise expressly provided in these Terms of Service or agreed to in writing by us) without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to registered users.
You are responsible for both:
· Making all arrangements necessary for you to have access to the Website.
· Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Service and comply with them.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We reserve the right to disable any account, user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion if you have violated any provision of these Terms of Service.
5. Intellectual Property Rights
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Website and our Services for your personal, household and non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:
· Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials on the Website.
· You may store files from the Website that are automatically cached by your Web browser for display enhancement purposes.
· You may print or download one copy of a reasonable number of pages of the Website for your own personal, household and non-commercial use and not for further reproduction, publication, or distribution.
You must not:
· Modify copies of any materials from this site.
· Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
· Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website (including our Services).
If you wish to make any use of material on the Website other than that set out in this section, please address your request to: email@example.com.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Service, your right to use the Website and our Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website or our Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
The Company name, the term Tiny Earth Toys, the Company logo and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
7. Prohibited Uses
You may use the Website and our Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Website or our Services:
· In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
· For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
· To send, knowingly receive, upload, download, use or re-use any material that does not comply with the Content Standards (as defined below) set out in these Terms of Service.
· To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
· To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
· To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website or our Services, or which, as determined by us, may harm the Company or users of the Website or our Services or expose any of them to liability.
Additionally, you agree not to:
· Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
· Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
· Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Service, without our prior written consent.
· Use any device, software, or routine that interferes with the proper working of the Website.
· Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
· Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
· Otherwise attempt to interfere with the proper working of the Website.
8. User Contributions
The Website may contain message boards, personal web pages or profiles, forums, comment sections, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.
All User Contributions must comply with the Content Standards set out in these Terms of Service.
Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
You represent and warrant that:
· You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
· All of your User Contributions do and will comply with these Terms of Services.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.
9. Content Standards
The content standards set forth in this Section (the “Content Standards”) apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
· Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
· Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
· Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
· Be likely to deceive any person.
· Promote any illegal activity, advocate, promote, or assist any use of our Toys (as defined below) not in accordance with our Safe Handling Policies (as defined below) or any other use of our Toys that is or could be dangerous, hazardous or inappropriate, or otherwise advocate, promote, or assist any unlawful act.
· Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
· Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
· Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
· Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
10. Copyright Infringement
If you believe that any User Contributions violate your copyright, please see our Copyright Policy for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.
11. Monitoring and Enforcement; Termination
We reserve the right to:
· Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
· Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms of Service, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for the Company.
· Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
· Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website or our Services.
· Terminate or suspend your access to all or part of the Website or our Services for any violation of these Terms of Service.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting materials on or through the Website or otherwise using the Website or our Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we cannot and do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party, and we have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
12. Reliance on Information Posted
The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Website includes content provided by third parties, including materials provided by other users, toy manufacturers and suppliers, bloggers, and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
13. Changes to the Website
We reserve the right to alter, enhance, withdraw, restrict the use of or amend the Website (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Website) in our sole discretion at any time without notice. We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
14. Online Purchases and Other Terms and Conditions
All purchases through our site or other transactions for the rental or sale of toys formed through the Website or as a result of our Services are governed by our Toy Subscription Policies, which are hereby incorporated into these Terms of Service. Please refer to the Toy Subscription Policies for more information.
15. Linking to the Website and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our prior express written consent.
This Website may provide certain social media features that enable you to:
· Link from your own or certain third-party websites to certain content on this Website.
· Send emails or other communications with certain content, or links to certain content, on this Website.
· Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us, solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
· Establish a link from any website that is not owned by you.
· Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
· Link to any part of the Website other than the homepage without our prior express written consent.
· Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Service.
The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Service.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
16. Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
17. Geographic Restrictions
The owner of the Website is based in the State of North Carolina in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
18. Safety Information and Related Disclaimers
Children’s safety is among our top priorities. As the parent, guardian or other supervising adult using our Services, you have an important role to play in ensuring children’s safe use and enjoyment of the toys or other products rented or purchased through our Services (collectively, “Toys”). When using or allowing a child to use any Toys, you agree that you must do all of the following (collectively, the “Safe Handling Policies”):
· Review and adhere to the safety and care card included with each Toy shipment.
· Review and adhere to all product information and instructions for safe handling and use that are included with the Toy.
· Remove Toys from packaging before introducing to children, and do not allow children to use or play with any packaging materials (including but not limited to any plastic bags or wrappers, which could present a suffocation hazard).
· Adhere to the age label on each Toy, including but not limited to for the purpose of ensuring small parts or other choking hazards are not introduced to children under 3 years old.
· Carefully supervise children during play and interaction with Toys.
· Exercise particular caution with small parts, ropes, strings and other strangulation or choking hazards that may be included with Toys.
· Immediately remove items from play that become damaged, broken, loose, chipped or in any way impaired, and email firstname.lastname@example.org notifying us of the breakage or impairment. More information on our policies for damaged or impaired Toys can be found in our Toy Subscription Policies.
We are not responsible for, neither we nor any Company-Associated Parties (as defined below) shall be liable to you or any other person for, and you hereby agree to release, defend, indemnify and hold each Company-Associated Party harmless from any injuries (including death), damage to property or any other costs, losses or damages of any kind or nature to you or others in any way resulting from failure to fully follow and adhere to these Safe Handling Policies or the otherwise negligent (or more culpable) use or handling of any Toys by anyone other than the Company-Associated Parties. You hereby expressly agree that you assume all risk of using or handling any Toys other than as specified by these Safe Handling Policies.
While we strive to source Toys from reputable suppliers and include in our kits only Toys that we believe to be of high quality and safe for use by children in the labeled age range, you further acknowledge and agree that (a) we do not design or manufacture any Toys, and (b) we are not (and do not in any manner claim to be) certified or particularly qualified to undertake, and we cannot and do not in all cases (and do not in any manner claim to) undertake, to perform any safety testing or quality assurance activities with respect to any Toys on your behalf or on behalf of any other person or entity; therefore, to the maximum extent permitted by applicable law, you acknowledge and agree that we do not control, are not responsible or liable for, and do not make or give any representations, warranties, guarantees or indemnities, regarding (i) the quality, safety, suitability, merchantability or fitness for a particular purpose with respect to any Toys, (ii) the truth or accuracy of any advertisements, promotional materials or other statements supplied by the manufacturers and/or suppliers of the Toys, or (iii) whether any particular Toy will meet the unique needs or expectations of any particular child or other user of our Services. The availability of any Toy on or through our Services does not imply our endorsement of the Toy for the unique needs or expectations of any particular child or other user of our Services.
Any reviews or testimonials of Toys or otherwise involving our Services are solely the opinions and views of the individuals that post or provide them, and no reviews or testimonials contain or reflect any opinions or views of the Company.
19. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
We strive to provide a reliable and useful experience when using the Website, but we do not guarantee that the Website will be available at any specific time and will not be liable for any reason if you cannot access the Website.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW:
(a) YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE (INCLUDING OUR SERVICES OR ANY TOYS) IS AT YOUR OWN RISK;
(b) THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE (INCLUDING OUR SERVICES OR ANY TOYS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS,” AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED;
(c) NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, SAFETY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE (INCLUDING OUR SERVICES OR ANY TOYS);
(d) WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE (INCLUDING OUR SERVICES OR ANY TOYS) WILL BE COMPLETE, ACCURATE, SAFE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE (INCLUDING OUR SERVICES OR ANY TOYS) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS; AND
(e) THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
NO ORAL OR WRITTEN INFORMATION, STATEMENTS OR ADVICE GIVEN BY ANY COMPANY-ASSOCIATED PARTIES, WHETHER ON THE WEBSITE (OTHER THAN IN THESE TERMS OF SERVICE) OR OTHERWISE SHALL CREATE A WARRANTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Please see our Toy Subscription Policies for additional product-related information and disclaimers in regards to Toys you receive through our Services.
20. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THE FOLLOWING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY:
(a) IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS (COLLECTIVELY, INCLUDING THE COMPANY, THE “COMPANY-ASSOCIATED PARTIES”) BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT OR ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND WHETHER OR NOT YOU OR THE COMPANY-ASSOCIATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) WHETHER PERTAINING TO THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE (INCLUDING OUR SERVICES OR ANY TOYS) OR OTHERWISE, UNDER NO CIRCUMSTANCES WILL ANY COMPANY-ASSOCIATED PARTY BE RESPONSIBLE OR LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, FOR LOST PROFITS, PERSONAL INJURY, OR PROPERTY DAMAGE, OR FOR ANY OTHER DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THESE TERMS OF SERVICE OR YOUR USE OF THE WEBSITE OR OUR SERVICES, EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT YOU OR THE COMPANY-ASSOCIATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) THE COMPANY-ASSOCIATED PARTIES FURTHER DENY RESPONSIBILITY FOR, AND YOU HEREBY AGREE THAT THE COMPANY-ASSOCIATED PARTIES SHALL NOT BE RESPONSIBLE FOR, ANY OR ALL LIABILITY, COSTS, LOSSES OR DAMAGES OF ANY KIND OR NATURE TO YOU OR OTHERS CAUSED BY (i) YOUR ACCESS OR USE OF THE WEBSITE, OUR SERVICES OR ANY TOYS INCONSISTENT WITH THESE TERMS OF SERVICE; (ii) ANY UNAUTHORIZED ACCESS OF SERVERS, INFRASTRUCTURE, OR DATA USED IN CONNECTION WITH THE WEBSITE; (iii) INTERRUPTIONS TO OR CESSATION OF THE WEBSITE OR SERVICES; (iv) ANY BUGS, VIRUSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE; (v) ANY ERRORS, INACCURACIES, OMISSIONS, OR LOSSES IN OR TO ANY DATA PROVIDED TO US OR THE OTHER COMPANY-ASSOCIATED PARTIES; (vi) THIRD-PARTY CONTENT, MATERIALS OR SERVICES NOT PROVIDED BY THE COMPANY; OR (vii) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHERS.
(d) YOU AGREE TO LIMIT ANY ADDITIONAL LIABILITY NOT OTHERWISE EXCLUDED, LIMITED, DISCLAIMED OR DENIED BY THE COMPANY-ASSOCIATED PARTIES UNDER THESE TERMS OF SERVICE TO YOUR DIRECT AND DOCUMENTED DAMAGES; AND YOU FURTHER AGREE THAT UNDER NO CIRCUMSTANCES WILL ANY SUCH LIABILITY EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO THE COMPANY DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO YOUR CLAIM FOR DAMAGES.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY AGREED OR OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify and hold harmless the Company-Associated Parties from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) of any kind or nature arising out of or relating to your violation of these Terms of Service, including but not limited to any use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content or any services or items obtained through our Website (including our Services or any Toys) other than as expressly authorized and specified in these Terms of Service, or your use of any information obtained from the Website.
22. Dispute Resolution; Binding Arbitration; Governing Law
(a) PLEASE READ THIS SECTION CAREFULLY, BECAUSE WE WANT YOU TO KNOW AND UNDERSTAND HOW IT AFFECTS YOUR RIGHTS.
(b) If you have an issue with the Website or our Services, we encourage you to review our frequently asked questions page or contact a member of our customer support team.
(c) If the guidance available on the frequently asked questions page and consultations with our customer support team are unable to resolve any issues, then you and the Company agree to first attempt to settle any claim, controversy or dispute arising out of or relating to the Website, our Services or these Terms of Service through consultation and negotiation, in good faith and a spirit of mutual cooperation.
(d) If you and the Company (the parties) cannot resolve the claim, controversy or dispute within forty-five (45) days through direct consultation and negotiation, then the claim, controversy or dispute shall be determined by final and binding arbitration to be administered by JAMS under its Comprehensive Arbitration Rules and Procedures. The dispute shall be arbitrated by one arbitrator that is reasonably acceptable to both parties. If the parties are unable to agree upon a single arbitrator, then the parties shall choose an arbitrator by striking from a list of arbitrators supplied by JAMS. The arbitration proceeding must be completed through the rendering of the award within six months of the selection of the arbitrator. The arbitration hearing shall be no longer than five consecutive business days to be equally divided between the parties. The arbitrator shall not have the power to award any punitive or exemplary damages nor attorneys’ fees to either party. The award of the arbitrator shall be accompanied by a written explanation of the basis of the award. The decision of the arbitrator shall be final and binding and may be enforced in any court of competent jurisdiction.
(e) The procedures set forth in this Section 22 are the exclusive means for resolving any claims, controversies or disputes of any nature whatsoever between the parties (whether in contract, tort or otherwise, including statutory, common law, fraud (whether by misrepresentation or by omission) or other intentional tort, property or equitable claims) arising out of or relating to the Website, our Services, these Terms of Service or the validity, scope, interpretation or enforceability of this Section 22, and, except as otherwise expressly provided in this Section 22, neither party may initiate or maintain any proceeding in any court or similar tribunal relating to any dispute within the scope of this Section 22, provided that either party may seek temporary equitable relief to the extent reasonably necessary to protect its rights under these Terms of Service, in each case from a court of competent jurisdiction.
(f) These Terms of Service and the rights the parties hereunder shall be governed by and construed in accordance with the laws of the United States and the State of North Carolina, as applicable, exclusive of conflict or choice of law rules. The parties expressly waive and disclaim the applicability of the United Nations Convention on the International Sale of Goods to the fullest extent permitted by law. The parties acknowledge that these Terms of Service evidence a transaction involving interstate commerce. Notwithstanding the provision immediately above with respect to applicable substantive law, any arbitration conducted pursuant to the terms of these Terms of Service shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
(g) YOU AND THE COMPANY AGREE TO ARBITRATE IN EACH PARTY’S INDIVIDUAL CAPACITY ONLY, AND NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. YOU AGREE THAT ANY ARBITRATION PROCEEDING WILL ONLY CONSIDER YOUR CLAIMS. CLAIMS BY, OR ON BEHALF OF, OTHER INDIVIDUALS, WILL NOT BE ARBITRATED IN ANY PROCEEDING CONSIDERING YOUR CLAIMS. YOU AND THE LICENSOR UNDERSTAND AND AGREE THAT, BECAUSE OF THIS SECTION 22 NEITHER YOU NOR THE COMPANY WILL HAVE THE RIGHT TO GO TO COURT (EXCEPT AS PROVIDED HEREIN) OR TO HAVE A JURY TRIAL OR PARTICIPATE AS ANY MEMBER OF A CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM.
(h) All disputes between the parties and all arbitration proceedings will be private and confidential and, except as may be required by law, neither you nor the Company nor any arbitrator may disclose the existence, content or results of any claim, controversy or dispute under arising out of or relating to the Website, our Services or these Terms of Service or arbitration hereunder without the prior written consent of both parties, unless to protect or pursue a legal right.
(i) Notwithstanding anything to the contrary in the foregoing, no party shall be precluded from bringing an individual claim in small claims court only, to the extent the applicable claim is within the jurisdictional limits of such court. The parties hereby agree to bring any such claim exclusively in the courts of the State of North Carolina located in Durham, North Carolina, and you and the Company hereby irrevocably submit to the exclusive jurisdiction of such courts in any such claim.
(j) This agreement to arbitrate may be enforced by the parties to these Terms of Service and their permitted successors and assigns or their heirs, executors, administrators, affiliates and legal representatives (as applicable), and shall survive the termination or breach of these Terms of Service.
23. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, THE WEBSITE OR OUR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
24. Force Majeure
You agree we will not be in default by reason of any failure or delay in the performance of our obligations hereunder where such failure or delay is due to any circumstance or cause beyond our reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, pandemic, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, earthquake, flood, hurricane, tornado, snow or ice storm or other natural disaster, fire, sabotage, or fluctuations or non-availability of electrical power, heat, light or air conditioning.
25. Waiver and Severability
No waiver by the Company of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
26. Entire Agreement
Except as set forth in Section 3 above titled “Changes to the Terms of Service,” no change, consent or waiver under these Terms of Service will be effective unless in writing and signed by the party against which enforcement is sought.
28. No Third Party Beneficiaries
Except as provided in the immediately following sentence, these Terms of Service are for the sole benefit of the parties hereto and their respective successors and permitted assigns and/or heirs, executors, administrators, affiliates and legal representatives (as applicable) and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Service. You agree that each of the Company-Associated Parties are express third party beneficiaries of the exclusions, limitations, disclaimers and rights to indemnification set forth in Sections 18 to 23 of these Terms of Service and entitled to exercise the rights and receive the benefits under such provisions (and any related provisions of these Terms of Services necessary to give full effect to such provisions) directly.
29. Your Comments and Concerns
This Website is operated by Tiny Earth Toys, Inc., a Delaware corporation with headquarters in Durham, North Carolina. To ask questions or comment about these Terms of Service, or to submit feedback, requests for technical support or other communications relating to our Website or Services, you may e-mail us at email@example.com, or write to us by mail at 201 W. Main St. Suite 115 Durham, NC 27701.