TERMS & CONDITIONS
EFFECTIVE DATE: FEBRUARY 1, 2022
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Navigating These Terms
We may change the Sites and Services we offer and/or choose to modify, suspend or discontinue this Website at any time and without notifying you. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. We will inform you of any modifications to these Terms by posting them on this Website. Continued use of this Website following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Website. Unless otherwise stated, these expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
II. GENERAL USE
We invite you to use this Website for individual, consumer purposes (“Permitted Purposes”). In these Terms we are granting you a limited, personal, non-exclusive and non-transferable license to use and to display the text, data, information, software, graphics, photographs and other content (“Materials”) on the Sites; your right to use the Materials is conditioned on your compliance with these Terms. You have no other rights in this Website or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner. If you make copies of any of this Website while engaging in Permitted Purposes then we ask that you be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on this Website. If you breach any of these Terms the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
III. USING SITES AND THE WEBSITE'S SERVICES
We appreciate you visiting this Website and allow you to visit the Website without registering with Us. By using this Website, you represent, acknowledge and agree that you are at least 18 years of age. However, in order to access certain password-restricted areas of this Website and to use certain Services and Materials offered on and through this Website, We may require you to successfully register an account with Us.
IV. PASSWORD-PROTECTED AREAS OF THIS WEBSITE
If you want an account with Us, you must submit the following information through the account registration page on this Website:
– a working email address;
– your first and last name; and,
– a password.
You may also provide additional, optional information so that we can provide you a more customized experience when using this Website. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. If approved, you will be sent an e-mail detailing how to complete your registration. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes. If you forget your password, we will send a password update to your provided email address.
You are responsible for complying with these Terms when you access this Website, whether directly or through any account that you may setup through or on this Website. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of This Website as well as paying related charges. It is also your responsibility to maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access this Website. Should you believe your password or security for This Website has been breached in any way, you must immediately notify Us.
You agree to pay all applicable fees related to purchases made on this Website. We may suspend or terminate your account and/or access to Our Services and this Website if your payment is late and/or your offered payment method (e.g., credit card or PayPal) cannot be processed. By providing a payment method, you expressly authorize Us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on your purchases. We partner with Affirm to offer financing of purchases on many of our Sites. If you select to make a purchase using the financing option, your purchase will be subject to Affirm’s Terms, including completion of a credit check and approval. See Affirm – Help for details.
We understand that you might cancel your account, but please know that we will only provide refunds in accordance with the “Cancellations, Returns, Exchanges, and Refunds” section below. Risk of loss and title for products you purchase from Us pass to you upon delivery of any such products to the carrier. You are responsible for filing any claims with carriers for damaged or lost shipments.
VI. CANCELLATIONS, RETURNS, EXCHANGES, AND REFUNDS
You may cancel an order any time prior to processing. You may return any of your products for a full refund (not including fees for shipping and/or White Glove Service) subject to the terms and conditions for returns for each of our products. Our return and refund policies for our products, which are incorporated into these Terms, are available on each of our Sites.
Refunds will be issued in the form of the original payment. If you purchased a product using an Offer Code (as defined herein), the dollar value of the Offer Code will not be refunded or credited back if any or all products are returned.
Unless a product exchange is requested due to a manufacturing defect or warranty claim, exchanges are processed as return and refund requests as described herein. After returning the product to be exchanged, you may place an order for the replacement product. You may only request one exchange. No refunds will be given for shipping fees or for White Glove Service fees on product exchanges. Products must be physically located in the contiguous United States, Alaska, and Hawaii to be eligible for return and/or warranty claims.
If you wish to return any products you purchased from us, please contact Customer Service by email at firstname.lastname@example.org to arrange for the return. Once the products have been returned and if such products fulfill the terms and conditions herein, you will be refunded the entire amount paid for such products less (i) any offer code or other discounts, (ii) fees for shipping and (iii) fees for White Glove Services.
VII. WHITE GLOVE SERVICE
We offer white glove delivery of some of our larger furniture products (“White Glove Services”). For Us to provide you White Glove Services, an adult over the age of 18 years must be present at the delivery address at the scheduled time. If no adult is present at the time of delivery, we reserve the right to leave the package with a secure authority or at a secure location, in Our sole discretion. All mattresses removed using the White Glove Services must be in sanitary conditions. All fees for White Glove Services are non-refundable after we ship the products to the White Glove Service provider and cannot be refunded in the event you return any products.
VIII. OFFER CODES
From time to time, we may offer qualified consumers offer codes (“Offer Codes”) through various communications and advertising channels that are redeemable towards a purchase on the Website, while supplies last, and subject to certain product exclusions or any other restrictions as determined and communicated by Us in Our sole discretion. Only valid Offer Codes provided by Us and fulfilling the terms of such Offer Code will be honored at checkout. Offer Codes supplied by a third party unauthorized to provide such Offer Codes by Us will not be considered valid. Each Offer Code is non-transferable and valid for single use on an item as provided in the terms and in Our sole discretion. Offer Codes cannot be used towards taxes. The Offer Code must be provided in the applicable box at checkout when purchasing the product. We are not responsible for lost, stolen or corrupted Offer Codes or any unauthorized use of the Offer Codes. Offer Codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed. The dollar value of any Offer Code will not be refunded or credited back if any or all of the products are returned. Offer Codes may have expiration dates and we may decide to stop accepting any Offer Codes or stop any promotion at any time in Our sole discretion. Offer Codes are void if copied, transferred, sold, exchanged or expired and where prohibited. Requests not complying with all terms and conditions of the Offer Codes will not be honored. Current promotion and offer details can be found here.
IX. ELECTRONIC COMMUNICATIONS
By using the Website and/or the Services provided on or through the Website, you consent to receiving electronic communications from Us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Website and/or Services provided on or through the Website. These electronic communications are part of your relationship with Us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
X. AWARA'S TEXT MESSAGE PROGRAM
Awara currently utilizes the services of Klaviyo, Inc. for text message marketing. By participating in Awara’s Text Messaging Program, you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. cart reminders) from Awara, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Standard carrier msg & data rates may apply.
Message frequency will vary. Awara reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. Awara also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so.
We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that Awara and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from Awara through any other programs you have joined until you separately unsubscribe from those programs.
Text the keyword HELP to our shortcode to return customer care contact information.
X.C. Customer Care
This text message program is a service provided by Klaviyo, Inc. to Resident Home Inc., located at 340 South Lemon Ave, #9599, Walnut, CA 91789. You may contact us at the e-mail address listed above.
X.E. Dispute Resolution
In the interest of resolving disputes between you and Awara in the most expedient and cost effective manner, you and Awara agree that any dispute arising out of or in any way related to these text messaging terms and conditions (“Messaging Terms”) or your receipt of text messages from Awara or its service providers will be resolved according to Section XXI of these terms.
XII. LINKS TO THIRD-PARTY SITES
We think links are convenient, and we sometimes provide links on this Website to third-party websites. If you use these links, you will leave this Website. We are not obligated to review any third-party websites that you link to from this Website, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from this Website, you do this entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites.
Certain areas of this Website (e.g. customer ratings and review areas) may permit you to submit feedback, information, data, text, software, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, we do not guarantee that you will be able to edit or delete any User Submission you have submitted.
By submitting any User Submission, you are promising Us that:
– you own all rights in your User Submissions (including, without limitation, all rights to the reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to Us the rights in your User Submissions as described in these Terms;
– you have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
– your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
– you voluntarily agree to waive all “moral rights” that you may have in your User Submission;
– any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
– your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
– your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
– you were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
– your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
– your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
– your User Submission does not contain any information that you consider confidential, proprietary, or personal; and,
– your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, you grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
– use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
– use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in Our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service); and,
– display advertisements in connection with your User Submissions and to use your User Submissions for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of this Website through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through this Website and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.
XIV. CUSTOMER PRODUCT REVIEW WEBSITE MODERATION POLICY
EFFECTIVE DATE: FEBRUARY 15, 2022
XIV.A. Review Moderation Guidelines
Whether solicited or unsolicited and without regard to the star value of the review, customer reviews will be curated in a timely manner and in Resident’s sole discretion as follows:
When we remove a customer review:
– if the review is incomprehensible;
– if the review includes obscene or vulgar language;
– if the review includes harassment or threats of violence or harm;
– if the review is unrelated to the review or use of the product purchased;
– if the review includes inappropriate references to race, religion, gender, sexuality, or ethnicity;
– if the review is false, misleading, or appears intended to direct customers to a competitive website or affiliate link;
– if the review includes non-public, personal information such as emails, phone numbers, physical addresses, or other forms of contact information;
– if, in the good faith judgment of the Resident Marketing team, the review is suspected to have been created by:
i) a bot (and not a real human);
ii) a competitor (and not a real customer);
iii) a consumer who did not actually purchase the product or receive services; and,
– if, in the good faith judgment of the Resident Marketing team (and in Our sole discretion), the review is deemed to be inappropriate or offensive for any other reason.
XIV.B. Violation(s) of the Guidelines
A customer’s violation of this Policy may lead to the restriction of the customer’s ability to post reviews, removal of their content, or suspension or termination of the customer’s Resident account.
XIV.C. Uniform Application of Review Moderation Guidelines
All guidelines are applied uniformly to all reviews submitted, regardless of whether the review provides positive or negative customer feedback, particularly when deciding whether or not we remove or refuse to post a review. For example, if we withhold a negative review for including obscene language, we will also withhold positive reviews that include obscene language.
XIV.D. "Verified" Status Reviews
Customer reviews that are marked “Verified” visually indicate that the review was provided by:
– a real person (and not a bot);
– an actual consumer (and not a competitor); and,
– someone who actually purchased the product being reviewed.
As such, they will only be removed if they violate any of the guidelines listed in the chart above.
XIV.E. Sorting & Filtering Reviews
All customer reviews will include the date of the review, and their order may be sortable by date, relevance, or some variables selectable by the consumer; Resident reserves the right to adjust the filters and sorting features at any time.
XIV.F. Outreach & Solicitation
On occasion, Resident may identify and contact our customers to solicit a customer review. If any incentive is provided in exchange for a review (e.g., discount, payment, opportunity, etc.), then the reviewer must disclose that “material” connection clearly in the review. See the FTC’s Endorsement Guidelines for more details. To the extent the reviewer fails to disclose such compensation, Resident will remove the review consistent with these guidelines.
XV. UNAUTHORIZED ACTIVITIES
To be clear, we authorize your use of this Website only for Permitted Purposes. Any other use of this Website beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. This is because as between you and Us, all rights in this Website remain Our property.
Unauthorized use of this Website may result in violation of various United States and international copyright laws. Unless you have written permission from Us stating otherwise, You are not authorized to use this Website in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):
– for any public or commercial purpose which includes use of this Website on another site or through a networked computer environment;
– in a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Website;
– in a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
– to stalk, harass, or harm another individual;
– to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
– to interfere with or disrupt this Website or servers or networks connected to this Website;
– to use any data mining, robots, or similar data gathering or extraction methods in connection with this Website; or,
– attempt to gain unauthorized access to any portion of this Website or any other accounts, computer systems, or networks connected to this Website, whether through hacking, password mining, or any other means.
You agree to hire attorneys to defend Us if you violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that we may end up having to pay as a result of your violation. You alone are responsible for any violation of these Terms by you. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Our defense of such claim.
XVI. PROPRIETARY RIGHTS
Awara Sleep™ and Forever Warranty™ are trademarks of Resident and/or its subsidiaries in the United States. Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Website are Our sole property.
XVII. DISCLAIMER OF WARRANTIES; LIMITED WARRANTY
THIS WEBSITE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS WEBSITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE IS FREE OF PROBLEMS. Without limiting the generality of the foregoing, we make no warranty that this Website will meet your requirements or that this Website will be uninterrupted, timely, secure, or error free or that defects in this Website will be corrected. We make no warranty as to the results that may be obtained from the use of this Website or as to the accuracy or reliability of any information obtained through this Website. No advice or information, whether oral or written, obtained by you through this Website or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
The products sold through the Sites are subject to the terms of the limited warranty available at each of our sites (the “Product Warranties”). The Product Warranties are incorporated by reference into these Terms. To the extent there is a conflict between these Terms and the terms of any Product Warranty and these Terms, the terms of the applicable Product Warranty shall govern.
XVIII. LIMITATION OF LIABILITY
WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS WEBSITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS SHALL NOT BE MORE THAN $100.00.
XIX. LOCAL LAWS; EXPORT CONTROL
We control and operate this Website from Our headquarters in the United States of America and the entirety of this Website may not be appropriate or available for use in other locations. If you use this Website outside the United States of America, you are solely responsible for following applicable local laws.
Any submissions by you to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
XXI. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as Our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against Us in the same proceeding.
This Provision provides that all disputes between you and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
XXI.A. Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at email@example.com the following information:
– your name;
– your address;
– a written description of your Claim; and,
– a description of the specific relief you seek.
If we do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
XXI.B. Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if:
– The dispute qualifies for initiation in small claims court; or,
– YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing Us at firstname.lastname@example.org the following information:
– Your name;
– Your address; and,
– a clear statement that you do not wish to resolve disputes with Us through arbitration.
Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
XXI.C. Arbitration Procedures
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
XXI.C.i. Arbitration Award
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and 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 will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
XXI.C.ii. Location of Arbitration
You or we may initiate arbitration in either San Francisco, California or the federal judicial district that includes your billing address. In the event that you select the latter, we may transfer the arbitration to San Francisco, California so long as we agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
XXI.C.iii. Payment of Arbitration Fees and Costs
So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
XXI.C.iv. Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
XXI.C.v. Jury Waiver
You understand and agree that by accepting this Provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g.,, the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of your account with Us or Our affiliates and your discontinued use of this Website. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Us to adhere to the language in this Provision if a dispute between Us arises.
We think direct communication resolves most issues – if we feel that you are not complying with these Terms, we will tell you. We will even provide you with recommended necessary corrective action(s) because we value this relationship.
However, certain violations of these Terms, as determined by Us, may require immediate termination of your access to this Website without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Website will be heard in the courts located in San Francisco County, California. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforced any of these Terms, we are not waiving Our rights. These Terms are the entire agreement between you and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Website. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
XXIII. CALIFORNIA CONSUMER NOTICE
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Website and Service is provided by Resident Home Inc. and / or its subsidiaries and is owned and operated by Resident Home Inc. If you have a question or complaint regarding the Website or Service, please contact Customer Service at email@example.com. You may also contact Us by writing to Resident Home Inc., 340 South Lemon Avenue, #9599, Walnut, CA 91789. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.