Last Updated: August 15, 2023
We reserve the right, at our sole discretion, to modify, discontinue, or terminate any of the Website, Services, Products or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Websites. By continuing to access or use any of the Website after we have posted a modification on the Website, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Website and the Services.
If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. USE OF PERSONAL INFORMATION
The Websites and the Services are available for individuals aged 13 years or older. If you are under 13 years of age, please do not use the Websites and the Services. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
3. TERMS AND CONDITIONS OF SALE
4. COMMUNITY GUIDELINES
Our community, like any community, functions best when its members follow a few simple rules. By accessing and/or using the Websites, the Services and/or purchasing the Products, you hereby agree to comply with these community rules:
We reserve the right, in our sole and absolute discretion, to deny you access to the Websites or the Services, or any portion of the Websites or the Services, without notice.
5. INTELLECTUAL PROPERTY
The Websites, and the Services contain material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of us (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on all copies of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content, the Websites and the Services automatically terminates, and you must immediately destroy all copies of the Content.
Our trademarks, service marks, and logos (“Our Trademarks”) that are used and displayed on the Websites, Services and Products are registered and unregistered trademarks or service marks. Other company, product, and service names located on the Websites, Services and Products may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Our Trademarks, the “Trademarks”). Nothing on the Websites, Services and Products should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless we provide advance written approval authorizing the establishment of such a link. All goodwill generated from the use of Our Trademarks inures to our benefit.
Elements of the Websites and the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
6. ACCOUNT CREDENTIALS
Some of our Websites, may give you the option to create a user account to facilitate purchases through the Website. If you choose to create a user account, you will have to provide your email address (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). Please note that you may choose to make purchases without creating an account. When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one user. You are responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. You represent and warrant that the information you provide to us during the account creation and at all other times will be true, accurate, current, and complete.
7. USER GENERATED CONTENT
From time to time, we may allow you to post reviews, comments, photos, or similar materials on the Websites (collectively, the “User Generated Content”). We cannot and do not review it all -- we are merely acting as a passive conduit for distribution of the User Generated Content to other users of our Websites. That said, we may remove User Generated Content that violates the terms of this Agreement, or that is offensive or otherwise unacceptable to us in our sole discretion.
You expressly acknowledge and agree that once you submit User Generated Content through any of the Websites, it will be accessible by other users of the Websites, and that there is no confidentiality or privacy with respect to such User Generated Content, including, without limitation, any personal information that you may make available. YOU ARE ENTIRELY RESPONSIBLE FOR ALL USER GENERATED CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE WEBSITES.
You retain all copyrights and other intellectual property rights in and to the User Generated Content. You do, however, hereby grant us a non-exclusive, royalty-free, sublicensable, transferable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit your User Generated Content as reasonably necessary to provide the Websites and the Services.
If you submit User Generated Content to us, each such submission constitutes a representation and warranty to us that such User Generated Content is your original creation (or that you otherwise have the right to provide the User Generated Content), that you have the rights necessary to grant the license to the User Generated Content under the prior paragraph, and that it and its use by us and our content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates the terms of this Agreement.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Website and our services (“Feedback”). Although we encourage you to e-mail us, you should not e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
9. NO WARRANTIES; LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS AND CONDITIONS OF SALE, THE WEBSITES, THE SERVICES, THE PRODUCTS AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER WE NOR ANY OF OUR SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND WE HEREBY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITES, THE SERVICES AND/OR THE PRODUCTS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITES, THE SERVICES AND/OR THE PRODUCTS SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100) EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS AND CONDITIONS OF SALE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE WEBSITES AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE WEBSITES AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITES AND THE SERVICES AND/OR ADD OR REMOVE CONTENT AT ANY TIME WITHOUT NOTICE.
10. EXTERNAL SITES
The Websites and the Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the Website administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You will indemnify, defend, and hold us and our shareholders, members, officers, directors, employees, agents, and representatives (collectively, “Our Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any of Our Indemnitees in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) your misuse of the Website, the Services, or the Content; (iii) your violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; or (iv) your negligence, gross negligence, willful misconduct, fraud, misrepresentation or violation of law.
12. COMPLIANCE WITH APPLICABLE LAWS
The Websites and the Services are based in the United States. We make no claims concerning whether the Websites may be viewed or be appropriate for use outside of the United States. If you access the Websites from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
13. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Websites and/or the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Websites and/or the Services at any time without prior notice or liability.
14. DIGITAL MILLENNIUM COPYRIGHT ACT
Reporting Claims of Copyright Infringement
We respect the intellectual property rights of others and attempt to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws. Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
If you believe that your work has been copied on any of the Website in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) 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; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
If you believe that material you posted on any of the Websites was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent (identified above).
Pursuant to the Act, the Counter-Notice must include substantially the following: (i) your physical or electronic signature; (ii) an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; (v) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.
The Act allows us to restore the removed content if the party filing the original notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the Act.
15. REFERRAL PROGRAMS
From time to time, we may offer various referral programs including but not limited to, Refer-a-Friend program (“Referral Programs”). Our Referral Programs will be subject to terms and conditions for the specific program. For more information on the terms and conditions of the specific program, please go to https://birchliving.com/pages/referral-terms.
16. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement or any other products or services provided by us (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed under the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 18 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
17. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
18. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights or confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Arizona for purposes of any such action by us.
19. CONTROLLING LAW; EXCLUSIVE FORUM
The Agreement and any action related thereto will be governed by the laws of the State of Arizona without regard to its conflict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of Arizona for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
If the Agreement is terminated in accordance with the termination provision in Section 13 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Use of Personal Information,” “Intellectual Property,” “User Generated Content,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2023 Brooklyn Bedding, LLC. All rights reserved.