TERMS & CONDITIONS
Last updated: October 10, 2017
This website [thegerberstore.com] (the “Website”) is owned and operated by SureSource LLC d/b/a BrandShop (“BrandShop” or “we” or “our” or “us”), .
Website features and other products and services are provided to you (“you”) when you visit or shop at the Website or use our products or services, or use our applications for mobile, or use software provided by or for us in connection with any of the foregoing, including to register, respond to surveys, communicate with us or receive communications from us (collectively, the "Web Properties"). The Services are subject to the following Terms and Conditions.
By using any of the Web Properties, you agree to these Terms. Please read them carefully. They include important information about your legal rights, remedies, and obligations. By accessing or using the Web Properties, you are entering into a legal contract regarding your use of the Web Properties. By accessing or using the Web Properties, you agree to be bound by the Terms and all additional terms incorporated by reference. If you do not agree to any portion of these Terms, you should not access or otherwise use any of the Web Properties.
These Terms are not applicable to any other web pages, applications, software, products or services operated, owned and/or offered by any entity other than BrandShop, as operator of the Website, including, but not limited to gerber.com. Users of the foregoing excluded web pages, applications, software, products or services or other resources should refer to the terms and conditions in effect for the applicable owner, operator or offeror.
Efforts will be made to update this web page with any changes we make to these Terms and you are encouraged to review these Terms frequently (the date of the most recent revision to these Terms appears at the top of these Terms).
1.CONVENIENCE AND INFORMATION ONLY. The Web Properties are provided to you as a convenience and for your information only. By merely providing access to the Web Properties, BrandShop and its third party service providers who assist us in providing payment processing services, operating our Web Properties, conducting our business, or servicing you do not warrant or represent that: (a) any materials, documents, images, graphics, logos, design, audio, video and any other information provided from or on the Web Properties (collectively, the “Content”) is accurate or complete; (b) the Content is up-to-date or current; (c) there is any obligation to update any Content; (d) the Content is free from technical inaccuracies or programming or typographical errors; (e) the Content is free from changes caused by a third party; (f) your access to the Web Properties will be free from interruptions, errors, computer viruses or other harmful components; and/or (g) any information obtained in response to questions asked through the Web Properties is accurate or complete.
2.WEB PROPERTIES USE AND CONTENT.
(a) Subject to your compliance with these Terms, you have a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Web Properties. You may view, copy or print a single copy of any page from the Web Properties solely for personal, non-commercial purposes if you include the following copyright notice: “Copyright © 2017. Brandshop. All Rights Reserved.” This right and license does not include any resale or commercial use of any of the Web Properties or any Content (defined below), any collection and use of any product listings, descriptions, or prices; any derivative use of Web Properties or any Content; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools.
(b) The Web Properties pages and materials may contain other copyright and proprietary rights notices and in no event may you remove, modify, or alter these notices. You may not otherwise use, modify, copy, print, display, reproduce, distribute or publish any information from the Web Properties without the express, prior, written consent of BrandShop. Changes may be made to the Web Properties and/or to the services described in these Terms at any time and without further notice to you.
3.USER ACCOUNT, PASSWORD AND SECURITY. When and if User Accounts are used in connection with the Web Properties, the following shall apply.
(a) USER ACCOUNT. For certain types of features available through the Web Properties, the use of encryption technologies are provided for your protection and/or your use of a UserID and password after setting up a User Account. Reasonable precautions will be used to protect the privacy of your UserID, password and User Account information. You, however, are ultimately responsible for protecting your UserID, password and User Account information from access by third parties, and where made available to you, you are not permitted to circumvent the use of required encryption technologies, if any. You agree to (i) immediately notify BrandShop of any unauthorized use of your UserID, password or User Account, or any other breach of security involving your UserID, password or User Account, and (ii) ensure that you exit from your User Account at the end of each session on any Web Properties. While certain encryption technologies are provided and other reasonable precautions are taken to protect your confidential information and provide reasonable security, we and BrandShop do not and cannot guarantee or warrant that information transmitted through the Internet is secure, or that such transmissions are free from delay, interruption, interception or error.
(b) ACCURATE INFORMATION. In creating and using your User Account for use on the Web Properties, you agree to: (i) provide true, accurate, current and complete information about yourself on any registration form required for the Web Properties (such information being the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if BrandShop has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, then we have the right to suspend or terminate your User Account and refuse any and all current or future use of your User Account.
(c) NON-TRANSFERABILITY OF USER ACCOUNT. Your User Account and UserID is non-transferable, and you are obligated to take preventative measures to prohibit unauthorized users from accessing the Web Properties with your UserID and password.
(d) ADULT USE ONLY. We may sell products for children, but we sell them only to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Web Properties only with involvement of a parent or guardian.
4.ELECTRONIC COMMUNICATIONS. When you use any of the Web Properties, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you in a variety of ways, such as by e-mail, text, in-app push notices, or by posting notices and messages on or through the Web Properties. You agree that all agreements, notices, disclosures, and other communications that BrandShop provide to you electronically satisfy any legal requirement that such communications be in writing.
5.PRODUCT DESCRIPTIONS. BrandShop attempts to be as accurate as possible with product and other content on the Web Properties. We don’t warrant that product or other content on any of the Web Properties is accurate, complete, reliable, current, or error-free. If a product or service offered on the Web Properties itself is not as described, your sole remedy is to return it in unused condition.
(a) NO WARRANTIES. When using the Web Properties, information will be transmitted in such a way that may be outside the control of BrandShop. As such, no warranty is made concerning the delay, failure, interruption, or corruption of any data, the Content, or other information transmitted in connection with the use of the Web Properties. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEB PROPERTIES IS AT YOUR SOLE RISK. THE WEB PROPERTIES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. NO REPRESENTATIONS OR WARRANTIES ARE MADE THAT THE WEB PROPERTIES, THE CONTENT OR ANY SERVICES OFFERED IN CONNECTION WITH THE WEB PROPERTIES ARE OR WILL REMAIN UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE WEB PAGES ON OR THROUGH THE WEB PROPERTIES, OR THE SERVERS USED IN CONNECTION WITH THE WEB PROPERTIES, ARE OR WILL REMAIN FREE FROM ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS. THERE IS NO GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEB PROPERTIES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT THERE WILL BE ADEQUATE CAPACITY FOR THE WEB PROPERTIES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. NO REPRESENTATION OR WARRANTY IS MADE REGARDING GOVERNMENT COMPLIANCE OF ANY SOFTWARE USED IN RUNNING THE WEB PROPERTIES. THE ENTIRE LIABILITY OF BRANDSHOP AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SERVICE OR PRODUCT PROVIDED ON OR THROUGH THE WEB PROPERTIES WILL BE THE REFUND OF THE PURCHASE PRICE FOR ANY SUCH PRODUCTS OR SERVICES FOUND TO BE INADEQUATE.
(b) INDEMNIFICATION. You agree to defend, indemnify and hold harmless,BRANDSHOP and its directors, officers, employees and agents from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by BrandShop, directly or indirectly, with respect to or arising out of: (i) your failure to comply with these Terms; (ii) your breach of your obligations under these Terms; and/or (iii) your use of the rights granted hereunder, including without limitation any claims made by any third parties.
7.LIMITATION OF LIABILITY. IN NO EVENT WILL BRANDSHOP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE WEB PROPERTIES AND/OR ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE WEB PROPERTIES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE WEB PROPERTIES, ANY CONTENT AND/OR ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE WEB PROPERTIES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY.
BRANDSHOP SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED THE AMOUNT YOU ACTUALLY PAID TO BRANDSHOP FOR GOODS OR SERVICES THROUGH THE WEB PROPERTIES IN THE PRIOR SIX (6) MONTHS, IF ANYTHING. BRANDSHOP IS NOT LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, OR PROPERTY DAMAGE CAUSED BY YOUR USE OR MISUSE OF THE WEB PROPERTIES AND/OR THE CONTENT. REMEDIES UNDER THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE LIABILITY OF BRANDSHOP WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8.THIRD PARTY CONTENT.
(a) Links to Third Parties. Hyperlinks to other websites maintained by third parties may be provided, or third party content on the Web Properties may be provided by framing or other methods (collectively, “Third Party Content”). In addition, the Web Properties may include certain applications, features, programs and services provided by third parties (collectively, the “Third Party Applications”). Third Party Content and Third Party Applications are not monitored by BrandShop and no guarantee as to the accuracy or completeness of such Third Party Content or Third Party Applications is or can be made. The links to third party websites, any Third Party Content and any Third Party Applications are provided for your convenience and information only. If you decide to access any of the third party websites linked to the Web Properties, any Third Party Content, and/or any Third Party Application, you do so entirely at your own risk. The content on any linked website or in any Third Party Application is not under BrandShop’s control and, just as with Web Properties, BrandShop is not responsible for the content of linked websites and/or Third Party Applications, including any further links contained in a third party website. No representations or warranties are made in connection with any Third Party Content or Third Party Applications, which at all times and in each instance is provided “as is.” Third Party Applications may be subject to additional terms and conditions or agreements between you and the provider of such Third Party Applications as may be provided to you in connection therewith, and by accessing such Third Party Application, you agree to fully comply with all such additional terms, conditions and agreements.
(b) Links from Third Parties. If a third party links or refers to the Web Properties, it is not necessarily an indication of an endorsement, authorization, sponsorship, affiliation, joint venture or partnership of that third party or its website or application by or with BrandShop. In most cases, BrandShop is not even aware that a third party has linked or refers to the Web Properties. A third party website or application that links or refers to the Web Properties: (i) may link or refer to, but not replicate, the Content; (ii) may not create a browser, border environment or frame the Content; (iii) may not imply that BrandShop is endorsing it or its products or services; (iv) may not misrepresent its relationship with BrandShop; (v) may not present false or misleading information about the products or services offered on the Web Properties; (vi) should not include content that could be construed as distasteful, offensive or controversial; (vii) should contain only Content that is appropriate for all age groups; and (viii) should not knowingly collect information from children without first complying with all applicable laws, rules and regulations. If you decide to access any of the third party websites or applications that link to the Web Properties, you do so entirely at your own risk.
(a) Ownership of Content. The Content of the Web Properties, including but not limited to graphics, audio clips, video clips, and editorial content, is intellectual property owned, controlled and/or licensed by BrandShop. All applicable intellectual property laws, including copyright laws, protect Brandshop’s rights in and to the Content. No portion of the Content may be reproduced in any form or by any means, except as provided in Section 2 of these Terms.
(b) Ownership of Trademarks, Service Marks, Logos. The trademarks, service marks and logos used and displayed on the Web Properties are either (i) BrandShop’s, or its subsidiaries’ or affiliates’, or (ii) registered and unregistered trademarks of another party. BrandShop is the copyright owner or authorized licensee of all text and all graphics contained on the Web Properties. All trademarks and service marks of BrandShop, or its subsidiaries or affiliates, that may be referred to on the Web Properties are the property of BrandShop, or one of its subsidiaries or affiliates. Other parties’ trademarks and service marks that may be referred to on the Web Properties are the property of their respective owners.
(c) No License or Right to Use. Nothing on the Web Properties should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of BrandShop’s, or its subsidiaries’, affiliates’ or licensors’ trademarks, service marks or copyrights without BrandShop’s prior written permission. BrandShop aggressively enforces its intellectual property rights. Neither the name of Brandshop, its subsidiaries, affiliates or licensors’, nor any of their respective other trademarks, service marks or copyrighted materials may be used in any way, including in any advertising, hyperlink, publicity or promotional materials of any kind, whether relating to the Web Properties or otherwise, without prior written permission of the owner of such marks, except that a third party website that desires to link to the Web Properties and that complies with the requirements of Paragraph 6(b) above may use the names “Gerber Products Company” or “Gerber” in or as part of that link.
(a) Submissions. For purposes of these Terms, “Submissions” means identifiable information, software, photos, pictures, audio, video, text, graphics, designs, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, uploads, notes, drawings, articles, stories about yourself, or other materials of any kind whatsoever, sent, transmitted, posted, emailed, texted, upload or otherwise conveyed or submitted to BrandShop or through the Web Properties, whether or not at our request, and including, but not limited to, postings in chat rooms or on bulletin boards or other social media or as part of a challenge, contest or other promotion.
(c) Assignment of Rights in Submissions. Without limitation of the foregoing,
(i) The Submission will forever be the property of, BrandShop and its successors and assigns as follows: You grant BrandShop and its successors and assigns a royalty-free, perpetual, irrevocable, non-exclusive right (including any moral rights) and license (as well as consent) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform, display and sublicense any Submissions (in whole or in part and with or without the use of your name in conjunction therewith) anywhere in the world. This means that if you make a Submission it could end up for sale as a Company product. We will not incur any liability as a result of any similarities that may appear in future Company products.
(ii) You grant to, BrandShop andits successors and assigns the right to incorporate Submissions into other works in any form, medium or technology now known or later developed, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, “Rights”) that may exist in such Submissions.
(d) No Third Party Rights. You warrant that any third party holder of any Rights has validly and irrevocably granted to you the right to grant the rights and licenses set forth above in this Section. You further acknowledge that BrandShop and its successors and assigns will be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise without any further consent or permission from you or any third party.
11.AVAILABILITY. Information that is published on or through the Web Properties may contain references or cross-references to products, programs or services of BrandShop, its partners, service providers, subsidiaries or affiliates that are not necessarily announced or available in your area. Such references do not mean that BrandShop, or any of its partners, service providers, subsidiaries or affiliates will announce any of those products, programs or services in your area at any time in the future. You should contact BrandShop for information regarding the products, programs and services that may be available to you, if any.
(a) BrandShop owns, protects and enforces copyright and other rights in its own intellectual property, and respects the intellectual property rights of others. Materials may be made available or submitted on or through the Web Properties by third parties not within the control of BrandShop. It is our policy not to permit materials known by us to be infringing to remain on or available through the Web Properties. Please notify us promptly if you believe that any materials on or available through the Web Properties infringe on your intellectual property rights or the intellectual property rights of anyone else.
(b) Once we receive proper notice of claimed infringement under the Digital Millennium Copyright Act (the “DMCA”), BrandShop will respond promptly to remove the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue.
(c) BEFORE FILING A NOTIFICATION. Before filing such a notification, make a careful determination as to whether or not the use of the material at issue is or may be protected by the “fair use” doctrine. You could potentially be held liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. If you are unsure whether there is infringement, it may be advisable to seek legal counsel.
(d) Address and Content of Notification.
(i) Notice of alleged infringement must be sent by certified mail and marked “Copyright Infringement” to BrandShop at Legal Department, 20 Constitution Blvd S, Shelton, CT 06484.
(ii) When notifying BrandShop of potential infringement, you must include the following:
• Identification of the copyrighted work(s) claimed to have been infringed. If multiple copyrighted works, then a representative list of such works on the Web Properties;
• Identification of the supposedly infringing material that is to be removed;
• Information reasonably sufficient to permit BrandShop to locate the material on the Web Properties;
• Contact information reasonably sufficient to permit BrandShop to contact the complaining party, such as an address, telephone number, or email address;
• A statement that the complaining party has a good faith belief that use of the material is in fact infringing and/or not authorized by the copyright owner, its agent, or the law;
• A statement that, under penalty of perjury, the information in the notification is accurate and where relevant that the complaining party is authorized to act on behalf of the copyright owner; and
• The signature, physical or electronic, of the copyright owner or a person authorized to act on his or her behalf.
(e) Counter Notification. A provider of content subject to a claim of infringement may make a counter notification. To file a counter notification with us, please provide the DMCA Agent a written communication containing the following:
• Identification of the supposedly infringing material that is to be removed;
• A statement that, under penalty of perjury, you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
• Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your postal address is located, and that you will accept service of process from the party who submitted the infringement notification or his, her or its principal or agent; and
- The signature, physical or electronic, of you or a person authorized to act on your behalf.
(f) BrandShop will promptly provide the party that provided the notice of claimed infringement with a copy of the counter notification, and inform the complaining party that we restore the removed or disabled content in ten (10) business days. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of the counter-notification, we will restore the removed or disabled materials. Until that time, your materials will remain removed or disabled.
13.TERMINATION. Your account or right to access to secured portions of the Web Properties may be terminated at any time, without notice, for conduct that is believed to violate these Terms and/or believed to be harmful to other users of the Web Properties, to BrandShop, to its partners or service providers, to the business of the our Internet service provider, or to other information providers. If you violate any of these Terms, your permission to use the Content pursuant to these Terms automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.
14.ARBITRATION. THIS SECTION REQUIRES THAT ANY DISPUTE ARISING FROM THESE TERMS MAY BE RESOLVED BY BINDING ARBITRATION, WHICH REPLACES THE RIGHT TO GO TO COURT.
(a) You acknowledge and agree that these Terms and the agreements contained herein are made pursuant to a transaction involving interstate commerce, and shall be governed by, and be enforceable under, the Federal Arbitration Act (the “FAA”) (9 U.S.C. §1 et seq.) as it may be amended. This Section sets out the circumstances and procedures under which Claims (as defined below) may be resolved by arbitration instead of a court.
(b) For the purposes of these Terms, the terms “Claim” or “Claims” refer to any disputes, controversies, claims, counterclaims, allegations of liability, theories of damage, or defenses between BrandShop, and any of its respective subsidiaries and affiliates, on the one hand, and you, the user of the Web Properties or holder of the User Account, on the other hand (all of the foregoing each being referred to as a “Party” and collectively as the “Parties”).
(d) Subject to the provisions of this Section and Section 15 (WAIVER OF CLASS ACTIONS), a Party hereto may elect to pursue mandatory binding arbitration with respect to any Claim. A Party who initiates a proceeding in court may elect arbitration with respect to any such Claims advanced in the lawsuit by any Party or Parties.
(e) A Party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”) describing (a) the nature and basis of the Claim or dispute; and (b) the specific relief sought (“Demand”). The Notices should be addressed (“Notice Address”) as follows:
Attn: Legal Department
20 Constitution Blvd S
Shelton, CT 06484
(f) You must notify BrandShop of any Claim brought by you within 100 days of the event or events giving rise to such Claim or you will have waived your right to bring such Claim or to participate in any legal action relating to such Claim. If BrandShop and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or BrandShop may commence an arbitration proceeding. After BrandShop receives notice at the Notice Address that you have commenced arbitration, BrandShop will promptly reimburse you for your payment of the filing fee required by the arbitration administrator, unless your Claim is for greater than $75,000.
(g) The Party filing a Claim in arbitration must choose one of the following two arbitration administrators: American Arbitration Association (“AAA”); or JAMS/Endispute (“JAMS”), both of which are independent from us. Any arbitration will be conducted under the rules of the selected arbitration administrator by an impartial third party chosen in accordance with the rules of the selected arbitration administrator and as provided herein. Arbitration hearings will be held at a place chosen by the arbitrator or arbitration administrator within the federal judicial district in which you reside at the time the Claim is filed or at some other place as agreed by the Parties in writing. If your Claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing as established by the rules of the arbitration administrator.
(h) Copies of the current rules of the arbitration administrators named above, and well as information about arbitration and arbitration fees, and instructions for initiating arbitration may be obtained by using the following contact information:
1633 Broadway, 10th Floor, New York, NY 10019
1920 Main Street, Suite 300, Irvine, CA 92614
(i) Claims will be resolved by a single, neutral arbitrator, who will be either a lawyer with at least ten (10) years of experience or a retired or former judge. The applicable procedures and rules of the arbitration administrator that are in effect on the date the arbitration is filed will govern the arbitration unless those procedures and rules are inconsistent with this Section, in which case the procedures and rules of this Section will prevail. The procedures and rules of arbitration may limit the amount of discovery available to you or us in the proceeding. Applicable substantive law consistent with the FAA and applicable statutes of limitations will be applied, and the arbitrator will honor claims of privilege recognized at law. At your discretion, you may have a hearing and be represented by counsel. Reasonable steps will be taken by the arbitrator to protect customer information and other confidential information, and the arbitrator may use protective orders to prohibit disclosure outside the arbitration if requested to do so by either Party. The arbitrator will have the power to award to a Party any damages or other relief provided for under applicable law, but will not have the power to award relief to, against, or for the benefit of any person who is not a Party to the proceeding. The arbitrator may award punitive damages or attorney fees if the law and/or these Terms authorize such relief. Any award made by the arbitrator will be evidenced in writing by the arbitrator, but the arbitrator is not required to provide a statement of reasons unless requested by a Party.
(j) Except as otherwise provided for herein, BrandShop will pay all filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your Claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the rules of the arbitration administrator. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the rules of the arbitration administrator. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the rules of the arbitration administrator.
(k) Any failure or other delay by either Party in enforcing this Section at any time, or in connection with any particular Claims, will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. Decisions rendered in arbitration proceedings will be final and binding on the Parties. There shall be no appeal from arbitration decisions other than for arbitrator bias, fraud or misconduct and any award granted in arbitration will be enforceable by any court having jurisdiction as provided by the FAA and/or other applicable law.
(l) You acknowledge that conduct by you that is inconsistent with the requirements of these Terms may cause BrandShop irreparable damage for which monetary relief may be inadequate. You agree that BrandShop may seek injunctive or other equitable relief prior to or during the pendency of any arbitration seeking to restrain such conduct without the necessity of proving actual harm or posting a bond.
(m) This Section shall survive (i) termination of, or changes in, these Terms and any relationship between you and BrandShop and/or its service providers; (ii) the bankruptcy of any Party or any other similar proceeding initiated by you or on your behalf; and (iii) payment in full of any debt by you or by a third party. Should any portion of this Section be deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. Notwithstanding any provision in these Terms, we agree that if we makes any future change to this Section (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Section.
15.WAIVER OF CLASS ACTIONS. THIS SECTION PROHIBITS YOU FROM BRINGING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN COURT, INCLUDING IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION, AND PROHIBITS YOU FROM BRINGING ANY CLAIM IN ARBITRATION AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION.
(a) Whether in state court, federal court, or any other venue, jurisdiction, or before any tribunal, the Parties agree that all aspects of litigation and trial of any Claim will take place without resort to any form of class or representative action. Thus the Parties may only bring Claims against each other in an individual capacity and waive any right they may have to do so as a class representative or a class member in a class or representative action. THIS CLASS ACTION WAIVER PRECLUDES ANY PARTY FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION REGARDING A CLAIM.
(b) Notwithstanding anything herein to the contrary, each Party retains the right to pursue any Claim in a small claims court and proceed on an individual basis for any such Claim that is within the court’s jurisdiction. Arbitration of Claims will be conducted as an individual action. No Party agrees to any arbitration on a class or representative basis and the arbitrator shall not have authority to proceed with any arbitration on a class or representative basis. Even if a class action lawsuit or other representative action is filed, including in the form of a private attorney general action, any Claim between you and us related to such lawsuits will be subject to an individual arbitration claim if so elected by either you or us. Arbitration proceedings with respect to separate Claims will not be consolidated without the consent of all Parties. Only those Claims that are (1) brought by us against you, or your heirs or your trustee in bankruptcy or (2) brought by you, or your heirs or your trustee in bankruptcy against us, may be joined in an individual action under this Section 15 (WAIVER OF CLASS ACTIONS).
(c) if not for this section, a Party may have otherwise had a right to participate or be represented in a case filed in court by others (including class actions and other representative actions) and a Party may otherwise have had a right to bring claims in a court before a judge or jury. Except as otherwise provided below, each Party waives any other rights that such Party would have if such Party went to a court, such as discovery or the right to appeal a decision.
16.GOVERNING LAW AND JURISDICTION. You agree that all matters relating to your access to, or use of, the Web Properties shall be governed by the laws of the State of Connecticut. Subject to the provisions of the Section 14 (ARBITRATION) set forth above, you agree and hereby submit to the exclusive personal jurisdiction and venue of the state or federal courts in the State of Connecticut with respect to such matters.
17.EXPORT RESTRICTIONS. Any software and all underlying information and technology downloaded or viewed from any Web Property or in connection with the services (collectively, “Software or Technical Data”) by you may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. You are solely responsible for complying with all trade regulations and laws, both foreign and domestic, in your use and viewing of the Web Properties, the Content, and any products or services of BrandShop, including without limitation, the Software or Technical Data. Except as authorized by law, you agree and warrant not to export or re-export the Software or Technical Data to any county, or to any person, entity, or end-user subject to U.S. export controls, including without limitation persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals. You further represent and warrant that no U.S. federal agency has suspended, revoked, or denied your export privileges.
18.MODIFICATION, SEVERABILITY AND POLICIES. Please review our other policies posted on the Web Properties. These policies also govern your use of the Web Properties. We reserve the right to make changes to the Web Properties, policies, User Account terms and these Terms at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
19.Legal Notice for New Jersey Residents. Under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. 56:12-14 et seq., consumers may not be offered any written contract which includes any provision that violates any clearly established legal right of a consumer, or responsibility of a seller, as established by state or federal law. Consequently, and for the avoidance of doubt, no provision in these Terms shall apply to any consumer in New Jersey if the provision violates any such clearly established legal right or responsibility, including, but not limited to, grounds for redress under or in the event of: (i) our tortious actions (e.g., negligence, failure to exercise a basic standard of care, failure to avoid creating an unreasonable risk of harm); (ii) the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1, et seq. (i.e., the statutorily imposed duty to refrain from manufacturing and selling dangerous products, with the possibility of punitive damages for violations thereof); (iii) the New Jersey Punitive Damages Act, N.J.S.A. 2A:15-5.9, et seq. (i.e., the statutory right to pursue punitive damages in the event of harm caused by actual malice, wanton and willful disregard, reckless indifference); (iv) the New Jersey Uniform Commercial Code (i.e., a comprehensive statutory regime governing the rights and duties of buyers and sellers with respect to contracts for the sale of goods, with the possibility of damages for economic and property harm); and (v) our failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft, as regulated by the Federal Trade Commission and the Federal Communications Commission, and as governed by the New Jersey Identity Theft Protection Act, N.J.S.A.56:8-161, et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-3, et seq.).
In addition, under the TCCWNA, no consumer contract may state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable in New Jersey. With respect to these Terms, (i) in Section 7 (LIMITATIONS OF LIABILITY), the provision concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents with respect to punitive damages, loss of data, and loss of or damage to property; (iii) in the Section 6 (DISCLAIMERS), the provisions concerning no warranties and the indemnification by you is not applicable to New Jersey residents unless you were negligent or have breached these Terms.
20.Ordering & Payment
(a) User Account. Having an user account on the Website enables you to enjoy an enhanced shopping and checkout experience. It helps us recognize you and retain your shopping preferences and enables you to manage and change your account settings. When you check out, you may sign up for your own account on the Website.
(b) Payment Method. We accept all VISA™, MasterCard™, American Express™ and Discover™ credit cards. Paying online with a credit card is easy and safe. Our secure server encrypts all submitted information. Just enter your credit card information during checkout.
(c) Ship to Multiple Addresses. We are happy to ship items to more than one address; unfortunately, we cannot do so online within a single order at this time. If you would like to place an order with multiple delivery addresses, you will need to enter separate orders on our Website.
(d) Sales Tax Information. All orders may be subject to sales tax in accordance with state law. Please note that your state and/or municipal government may require you to declare mail order purchases and pay sales tax on them directly.
21.19. SHIPPING & RETURNS
(a) Shipping Charges. Shipping and pricing options are provided at the time of checkout.
Shipping charges are calculated based upon weight. Actual charges are displayed in checkout.
(b) Canada & International Shipping. We currently do not ship to Canada or other international locations.
(c) Order/Shipping Issues. If you need assistance with your order or have an issue with shipping, please contact Customer Service by email at firstname.lastname@example.org or by calling 1-844-805-8139. Once the order has been placed, the shipping address may not be changed.
(d) Product Returns. This policy applies only to products that were purchased on the Website. Products purchased from other retail outlets must be returned to the original place of purchase, in accordance with that retailer's return policy. [Gerber products cannot be returned unless they are new, unopened, unused, and in the original factory-sealed packaging. Eligible products can be returned to Gerber for exchange, or refund within __ days of the purchase date. The cost of the original shipping is not refundable. Please contact our customer care team at 1-844-805-8139 or email@example.com for complete instructions on product returns.
22.20. PRIVACY. Please review the Privacy Notice, which also governs your use of the Web Properties, to understand our practices.
23.21. FEEDBACK AND COMMENTS. Comments, information or feedback submitted to us through email, text and/or the Web Properties, will be subject to the Privacy Notice. If you have additional questions or comments of any kind, or if you want to provide feedback on anything you see on the Website Proprieties, please let us know by sending your comments or requests to:
Attn: Legal Department
20 Constitution Blvd S
Shelton, CT 06484
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If you have any question or need help with your account, you may Contact Us to assist you.
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