ACCEPTANCE OF TERMS
By accessing or using the Services in any manner, including but not limited to, visiting or browsing the Site, registering an account, or contributing content or other materials to the Site or Blog, you expressly understand, acknowledge, and agree to be bound by these Terms. If you do not agree to any of these Terms, please discontinue your use of the Services immediately.
AGE OF ELIGIBILITY
USERS AND ACCOUNTS
To use certain Services, you may need to create an account. You may also have the option of creating an account in anticipation of making future purchases. If you create an account, you agree you will: (a) create only one account; (b) provide honest, accurate, current and complete information regarding yourself; (c) keep your information updated and accurate; and (d) notify PROUDLY if you discover or suspect that your account has been hacked or its security has been breached.
You agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account. You may never use another person's Account or registration information for the Site without permission. You are responsible for providing the equipment and services that you need to access and use the Services. We do not guarantee that the Services will be accessible on any particular equipment or device or with any particular software or service plan.
We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the Services or any component of the Services, and to block or prevent future access to and use of the Services and to delete your account and any related information. Any obligation or liability incurred prior to termination of your access to the Services will survive such termination.
PURCHASES FROM PROUDLY
All orders are subject to our acceptance or rejection based on product availability, noncompliance with these Terms or any other reason as determined in our sole discretion. We may take steps to verify your identity to process your order and may limit or cancel quantities of Products purchased per person, per household or per order. These restrictions may include orders placed by or under the same account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email, billing address and/or phone number provided at the time the order was made, and we will either not charge you or will refund the charges for orders that we cancel or do not process. We further reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
All prices displayed on the Services are quoted in U.S. Dollars, are exclusive of any applicable local, state, or federal taxes, and are valid and effective only in the United States. Shipping and handling fees, if any, will be reviewable prior to submitting your order. We strive to provide accurate pricing information regarding the Products. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, not to process or to cancel any orders placed for a product whose price was incorrectly posted on the Site as a result of an error. If an error occurs, we will notify you by email and may refund the payment for such order. Product prices are subject to change without notice. We may, in our sole discretion, offer promotional codes at certain points in time, or for certain audiences. In the event such promo codes are enabled, promo codes should be entered during the checkout process to be valid. Discounts and discount thresholds exclude taxes and charges for shipping and handling. Discounts cannot be used in conjunction with any other offers.
All payments through the Services are processed using a third-party processor. If you wish to purchase a Product or any service made available through the Services, you may be asked to supply certain information relevant to your transaction, including without limitation your credit or debit card number, the expiration date of your credit or debit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT OR DEBIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant us (or the third party collecting that information on our behalf) the right to provide such information to third parties for purposes of facilitating the completion of the transaction initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction. You agree to pay all charges incurred by users of your credit card, debit card, or other method of payment. Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of the products as such costs are specified by us when you submit your order. After you place your order, we will send you a confirmation email.
The Site may contain information regarding the availability of Products. In rare cases, a Product may be shown as in stock when you place the order, but becomes sold out prior to our processing of the order. Should this happen, we will notify you by email, and offer you an option to cancel the item and receive a refund, or offer you an option to delay receipt of the product. We also may offer some Products for sale before they have been manufactured or arrive at our warehouse (ie; ‘pre-order’). When you pre-order these Products, we will ship them out once they are available. In rare cases, these items may not become available for shipping. Should this happen, we will notify you by email, cancel the item from your order, and refund the payment for such order.
PROUDLY currently ships only to locations within the 50 United States, although some Products cannot be shipped to addresses in Alaska or Hawaii due to federal regulations. Shipments will be made via standard ground service unless otherwise specified at the time of purchase. The time period from order to delivery will vary depending on location. Please refer to our Shipping Information for more details.
4.5. PRODUCT DELIVERY
Excluding pre-orders, your order will be fulfilled by the delivery date set out at time of the transaction or in your order confirmation. If no delivery date is specified, then you will receive your order within 30 days after the date of the order confirmation, unless there are exceptional circumstances, at which point we will inform you of a new estimated delivery date.
Your order will be delivered to the delivery address that you specify when placing your order. If we are unable to deliver to your delivery address, we will contact you. Products within the same order cannot be delivered to different addresses.
Ownership of the Product ordered will also pass to you upon your receipt of the Product, provided full payment of all sums due in respect of the Product, including any delivery charges, has been received. Once received and paid for, the Product ordered will be at your risk.
If any Product you order is damaged or faulty when delivered to you or has developed a fault, you may have one or more legal remedies available to you. If you believe a Product was delivered in a damaged or faulty state or has developed a fault, you should inform us as soon as possible, preferably in writing, and follow instructions provided by our customer service department.
4.6. RETURNS AND EXCHANGES
Except for Products which are final sale, we accept returns and exchanges if requests are submitted within 30 days of you receiving the order in its entirety. To return or exchange a Product, please email us at CustomerCare@proudly.com for returns and exchanges.
Upon receiving the returned Product(s) from you, we will process any refund due to you as soon as possible. You will be refunded in full to your original form of payment, including the cost of standard delivery; however, we will not refund your cost of returning the Product(s) to us. If you received any promotional or other discount when you paid, any refund will only reflect the amount you actually paid. Please refer to our Returns Policy for more information.
All Products should be used strictly in accordance with their instructions, precautions and guidelines.
We attempt to provide accurate descriptions of Products. We do not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free. If a Product is not as described, your sole remedy is to return the item unless otherwise specified in writing by us. We occasionally run promotions or provide limited-time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions.
You should always check the Product ingredients to avoid potential allergic reactions. Please consult with your own physician or health care practitioner regarding the use of any Products or information in the Services before using or relying on them. Use by a child of any Product should be only after the child’s parent or legal guardian has discussed the Product with the child’s physician. PROUDLY does not provide or intend to provide any answers to medical-related questions and the Services do not replace the advice of any medical professional or medical resource.
Statements made about Products available through the Services have not been evaluated by the U.S. Food and Drug Administration (FDA) or any other government agency and the results reported, if any, may not occur in all individuals. Such statements and Products sold through PROUDLY are not intended to diagnose, treat, cure or prevent any condition or disease.
While PROUDLY has tried to accurately display the colors of products, the actual colors you see will depend on your monitor and may not be accurate.
CHANGES TO THIS AGREEMENT
Your failure to cease use of the Services after receiving notification of any modification will constitute your acceptance of the modified Terms. If you do not agree to any of the Terms or any changes to the Terms, you are not authorized to use, access or continue to access the Services, and must discontinue any use of the Services immediately.
Certain services offered through the Site may be subject to additional terms. Those terms will be presented in conjunction with the particular program or offer and will be binding on those who participate in those programs or offers. These Terms will apply equally. Without limitation, the additional terms include product & service descriptions, prices, and restrictions posted on the Services, which are subject to change from time to time and should be reviewed by you each time you submit content or place an order.
RESPONSIBLE USE OF THE SITE AND SERVICES
You may use the Services for lawful purposes and in accordance with these Terms. No other use is permitted.
Without limiting the foregoing, you may not use the Services:
8.1. for any purpose that is unlawful under applicable federal, state, local or international law, or prohibited by these Terms;
8.2. to harass, cause harm to, or damage any person or entity;
8.3. to interfere with the proper operation of the Services or in a way that restricts or inhibits anyone’s use or enjoyment of the Services;
8.4. to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by PROUDLY in its sole discretion) or viruses or other malware which may harm the operation of the Services or anyone else’s computer;
8.5. to create an account for the purpose of making a competitive assessment of our services or incorporating any information or other content from the Services into any service you offer to third parties;
8.7. to access or scrape the Site by any automated means unless you are a search engine crawling the Site for the sole purpose of creating a publicly accessible search index; to bog down the Site by uploading or downloading an unreasonably large amount of material at one time; or to bypass any technical protections, storage limits or throttling that we institute; or
8.8. to reverse engineer, decompile, disassemble, create derivative works of, remove the copyright designation from, copy, sublicense or distribute any content, application or software code associated with the Services.
CONTENT SUBMISSION TERMS
You are solely responsible for all content you may submit to the Services or share with other users of the Services (“User Content”). You warrant and represent that your User Content does not contain any material or content that is unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another’s rights including but not limited to rights of copyright, celebrity, publicity, privacy and intellectual property, or otherwise in violation of any federal, state or local law, rule or regulation. PROUDLY has the right in its sole and absolute discretion to remove User Content.
The Site may pull content from our users who share photos and videos on Instagram or other social media services using our brand hashtags or tagging the @theproudlyco account (collectively, “Photos”). You acknowledge and agree that the Photos may be used in PROUDLY’s emails and on the Services, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the Photos for identification, publicity related to the Services and similar promotional purposes, including after your termination of your account. You represent and warrant that the posting and use of your Photos, including to the extent such Photos include your name, username, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyright, trademark and other intellectual property rights.
By uploading any User Content you hereby grant PROUDLY and its successors and assigns a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Site or the promotion, advertising or marketing of the Services, in any form, medium or technology now known or later developed, and including after your termination of your account or use of the Services. For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, contract rights, copyright, trademark, or any other intellectual property or proprietary rights.
Except where prohibited by applicable law, by submitting User Content through the Services, you are waiving and agreeing not to assert any copyright or “moral” rights or claim resulting from our alteration of the User Content or any submissions, photographs, footage, illustrations, statements or other work contained in the User Content. You are also agreeing to appoint PROUDLY as your irrevocable attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, we can own and protect the rights in any derivative works created from your User Content, and we can have the User Content removed from any other website or forum.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, “Submissions”) that you provide to us are non-confidential and non-proprietary and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
We have no obligation to, but reserve the right to, monitor, flag, delete, or refuse to reproduce any User Content we believe may be in violation of these Terms, and to cancel any order based on such User Content. Under no circumstances will PROUDLY be liable in any way for any loss of any User Content. The Site is not intended as a storage depository for User Content, and you are responsible for retaining copies of your User Content.
If you use a mobile device to access the Services, you acknowledge and agree that: (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Services, and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that mobile device service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise. By accessing or using any Services via a mobile device, you agree to these Terms.
UNITED STATES SERVICES
The Services are owned and operated by us in the United States. You are responsible for compliance with any local laws if you access or use the Services from anywhere else. The Products displayed on the Site can be ordered and delivered only within the United States. All prices displayed on the Services are quoted in U.S. Dollars, and are valid and effective only in the United States.
PROUDLY owns, licenses, or controls all text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code on the Site and in the Services (collectively, “Content”), including but not limited to the design, structure, selection, expression, “look and feel” and arrangement of such Content, some or all of which is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
The Content is provided to you “as-is” for your information and personal use only. Except as expressly provided in these Terms, no part of the Site or Services and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, sold, transmitted or distributed in any way (including “mirroring”) to any other computer, server, website, mobile application or other medium for publication or distribution or for any commercial enterprise without PROUDLY’s express prior written consent.
You may use information about PROUDLY and its Products purposely made available by PROUDLY for downloading from the Site, provided that you (1) not remove any proprietary notice language in any copy of such information, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such information. You agree not to circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Site or the Content therein.
The trademarks, service marks, and logos of PROUDLY (the “PROUDLY Trademarks”) used and displayed in connection with the Services are registered and unregistered trademarks or service marks of PROUDLY. Nothing on the Site or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any PROUDLY Trademark without our prior written consent specific to each such use.
PROUDLY is strongly committed to respecting intellectual property and other rights. As set forth in the following paragraphs, we have a policy of responding to notices of alleged copyright and trademark infringement that comply with applicable laws, including the Digital Millennium Copyright Act in the United States, and terminating accounts of repeat infringers in appropriate circumstances.
To report an intellectual property issue other than those related to the DMCA (see below), please email us at email@example.com. We may, in our sole discretion, limit, suspend, or terminate any user’s access or account, delay or remove Content, and take technical and legal steps to keep users from using the Services if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies or Terms (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other users).
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) POLICY
PROUDLY will respond to proper notifications of claimed copyright infringement with respect to material posted by users and will take appropriate action including removing and disabling access to the allegedly infringing material on the Site. We also will, in appropriate circumstances, terminate the accounts of registered users whom we find to be repeat infringers. We also may, in our discretion, suspend and/or terminate the account of any registered user who infringes another’s intellectual property right whether or not there is repeat infringement.
If you believe your copyright has been infringed, you should submit notice to our designated DMCA agent at:
PROUDLY Baby Inc.
Attn: DMCA Copyright Agent
1600 Main St, 2nd FL
Venice, CA 90291
Any such notice should include the following:
1.1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
1.2. A description of the copyrighted work that you claim has been infringed upon;
1.3. A description of where the material that you claim is infringing is located on the Site;
1.4. 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;
1.5. Your name, address, telephone number and email address (if available); and
1.6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our designated DMCA agent listed above, provided that such counter-notification must be in writing and contain the following required information:
1.1. Your physical or electronic signature;
1.2. 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 to it was disabled;
1.3. A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
1.4. Your name, address, telephone number, and a statement that you consent to the jurisdiction of the federal district court in Los Angeles County, California, and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.
THIRD PARTY SITES
The Services may contain links or access to third-party web sites or services that are not owned or controlled by us (“Third-Party Services”). A description or link to Third-Party Services does not imply our endorsement of the Third-Party Services. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any Third-Party Services. You further acknowledge and agree we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such Third-Party Services. We encourage you to review the policies of any third-party sites you visit.
You agree to release, indemnify, defend, and hold harmless PROUDLY, its affiliated companies (collectively “PROUDLY”), and their respective affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, business associates, suppliers and representatives (the “PROUDLY Entities”) from and against any actual or threatened claims, actions, demands, liabilities, costs, damages, settlements, and expenses (including interest, penalties, and attorney, accounting and expert witness fees) (“Liabilities”) incurred by any PROUDLY entity in any way arising out of or relating to your breach of these Terms, applicable law or our other policies referenced in these Terms, including but not limited to your use of the Site or any use of your User Content that infringes the rights of third parties. PROUDLY reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, if PROUDLY assumes defense and control of such matter, you agree to cooperate with our defense of an applicable claim. You agree not to settle any matter related to the Services, including indemnified claims, without our prior written consent. We will use reasonable efforts to inform you of any Liabilities subject to indemnification by you.
PROULDY PROVIDES THE SITE AND CONTENT ON AN “AS-IS” BASIS., TO THE MAXIMUM EXTENT PERMITTED B Y LAW, THE PROUDLY ENTITIES MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE, AND NON-INFRINGEMENT, ABOUT THE CONTENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THEIR ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS. THE PROUDLY ENTITIES HAVE NOT MADE ANY REPRESENTATION AS TO THE POTENTIAL BENEFITS YOU MAY REALIZE BY USING THE SERVICES OR CONTENT, THE PROUDLY ENTITIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR THE SERVICES OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK.
THE PROUDLY ENTITIES DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT THE SERVICES, THE SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO PROUDLY ENTITY SHALL BE RESPONSIBLE FOR THOSE COSTS.
YOU FURTHER ACKNOWLEDGE THAT THE PROUDLY ENTITIES ARE NOT LIABLE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM ANY MISUSE OF ANY PRODUCTS OFFERED THROUGH THE SERVICES. YOU HEREBY AGREE NOT TO USE PROUDLY PRODUCTS FOR ANY ILLEGAL PURPOSE AND YOU ASSUME ALL LIABILITY FOR ANY ACTION YOU TAKE FOR ANY ACTION THAT IS CONTRARY TO THE TERMS OR ANY LAW, RULE, OR REGULATION OF ANY TERRITORY.
LIMITATIONS ON LIABILITY
IN NO EVENT SHALL ANY PROUDLY ENTITY BE LIABLE FOR (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, STATUTORY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES, OR (B) LOSS OF OR DAMAGE TO REPUTATION ARISING IN CONNECTION WITH, OUT OF, OR AS A RESULT OF (i) THESE TERMS OR THE SERVICES, AND (ii) ANY ACTS OR OMISSIONS OF ANY OF THE PROUDLY ENTITIES IN CONNECTION WITH THESE TERMS OR THE SERVICES.
THE MAXIMUM REMEDY AVAILABLE TO YOU UNDER THESE TERMS AND IN CONNECTION WITH THE SITE AND SERVICES IS $250 IN THE AGGREGATE.
SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF THE PROUDLY ENTITIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
FOR NEW JERSEY RESIDENTS, THE LIMITATIONS SET FORTH ABOVE ARE INAPPLICABLE WHERE ATTORNEYS’ FEES, COURT COSTS, OR OTHER DAMAGES ARE MANDATED BY STATUTE.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION ("ARBITRATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH PROUDLY AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
YOU AND PROUDLY AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED THROUGH THE SERVICE, THESE TERMS, OR CONTENT (A "DISPUTE" AS DEFINED BELOW) SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, AS DETAILED BELOW.
You and PROUDLY agree that these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
"Disputes" shall include, but are not limited to, any claims or controversies between you and PROUDLY against each other related in any way to or arising out of in any way from the Service or the Content including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and PROUDLY, even if the claim arises after you or PROUDLY has terminated use of Services or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that PROUDLY brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and PROUDLY, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with PROUDLY; (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. “Disputes” does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets, claims of piracy or unauthorized use of intellectual property (collectively, “intellectual property claims”).
19.2. Initial Dispute Resolution
Most disputes can be resolved without resort to litigation. You can reach our support department at info@Proudly.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with our support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
19.3 Binding Arbitration Process and Procedure
Except as provided herein, if we cannot resolve a Dispute informally, any Dispute will be resolved only by binding arbitration to be held in the county in which you reside. For residents outside the United States, arbitration shall be initiated in Los Angeles, California. PROUDLY and you further agree to submit to the personal jurisdiction of any state or federal court in Los Angeles County, California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
To begin an arbitration proceeding, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, California 94111; and (c) send one copy of the Demand for Arbitration to 1100 S Coast Hwy, Suite 318, Laguna Beach, CA 92651.
The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS' most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state's law.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, PROUDLY will pay the additional cost. PROUDLY shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be frivolous or asserted or conducted for an improper purpose. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney's fees and expert witness costs unless PROUDLY is specifically required to pay such fees under applicable law.
If PROUDLY's or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
You or PROUDLY may choose to pursue a claim in small claims court where: (a) jurisdiction and venue over you and PROUDLY otherwise qualifies for such small claims court; (b) such claim advances only on an individual (e.g. non-class, non-representative) basis; and (c) where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to provide PROUDLY with advance notice by email to info@Proudly.com and by mail to PROUDLY Baby Inc. 1600 Main Street, 2nd Floor, Venice CA 92091.
These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against PROUDLY on your behalf.
19.4. Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable or whether any claims are not subject to Arbitration. The arbitrator will decide the rights and liabilities, if any, of you and PROUDLY. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
19.5. Waiver of Jury Trial
YOU AND PROUDLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and PROUDLY are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
19.6. 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out. Your notice must be sent via email to privacy@Proudly.com and to: PROUDLY within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your account (if you have one), your signature, and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
19.7. Parents, Subsidiaries, Affiliates
This Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of PROUDLY, or any employee, officer, director, or investor of PROUDLY, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Service, any person's access to and/or use of the Service, and/or the provision of content, products, services, and/or technology on or through the Service.
19.8. Parents, Subsidiaries, Affiliates
PROUDLY will provide thirty (30) days’ notice of any changes to this section by posting on the Service, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the applicable website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the sections entitled "Arbitration" and "Class Waiver" and the court or arbitrator shall apply the first Arbitration and Class Action Waiver sections in existence after you began using the Service.
WAIVER OF CLASS OR CONSOLIDATED ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
PROUDLY and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. PROUDLY and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party. If an Arbitrator or a Court determines that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then the portion of the claim seeking that remedy (and only that portion of the claim) must be severed from the arbitration and may be brought in court. All other claims shall remain subject to arbitration solely on an individual basis.
The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other PROUDLY users, and cannot be used to decide other disputes with other users.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in San Francisco, California.
If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of PROUDLY, or any employee, officer, director, or investor of PROUDLY, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Services
22.1. APPLICABLE LAW
These Terms constitute a contract made solely over the Internet and you agree that the laws of the State of California without regard to principles of conflict of laws will govern these Terms and any claim or dispute that has arisen or may arise between you and PROUDLY relating to use of any aspect of the Services.
22.2. ENTIRE AGREEMENT These Terms and the terms and conditions incorporated in these Terms by reference are the entire agreement between you and PROUDLY.
Except as provided in the Arbitration provisions above, if any provision of these Terms is unenforceable, the validity and enforceability of the remaining provisions will not be affected.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.
In construing or interpreting these Terms, headings are for convenience only and do not have any substantive meaning or interpretive value.
22.6. FORWARD-LOOKING STATEMENTS
The Services may contain forward-looking statements with respect to PROUDLY future events and business development. The forward-looking statements are not binding obligations or guarantees of PROUDLY, but are PROUDLY’s beliefs with respect to the subject matter. PROUDLY’s future actions or results could differ materially from those included in any forward-looking statement. It is our intent to regularly update the Services but make no commitment or warranty to do so.
You may not assign or transfer these Terms (or any of your rights or obligations under these Terms) without our prior written consent. Any attempted assignment or transfer without complying with the foregoing will be void. We may freely assign or transfer these Terms. These Terms are to the benefit of, and are binding upon, the Parties and their respective legal representatives, successors, and assigns.
PROUDLY Baby Inc.
1600 Main Street, 2nd Floor, Venice CA 92091