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Terms and Conditions

 

Welcome to DEMDACO! These Terms and Conditions (“Terms”) are an agreement between you and DEMDACO and any of its subsidiaries and affiliates (collectively, “DEMDACO”) that govern your use of our websites at www.DEMDACO.com , www.Willowtree.com, or any other location where these Terms are posted (“Sites”). If any particular Site, product, or service has a different set of terms, those specific terms govern in the event of a conflict.

Summary of Arbitration Provisions

These Terms contain binding arbitration and class action waiver terms. For more information about this process, including how you can opt-out of arbitration, please see Dispute Resolution and Arbitration below.

Use of Site

Your use of the Sites is governed by these Terms. Please take a few minutes to review them. Your use of the Sites constitutes your agreement to follow these Terms and to be bound by them. If you do not agree with any of these Terms, please do not use the Sites.

Children under the age of 13 may not use the Sites and parents or legal guardians may not agree to these Terms on their behalf. If you are under the age of 18 but at least 13 years of age, you may use the Sites only with the consent of, and under the supervision of, a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian agreeing to these Terms on behalf of a child between the ages of 13 and 18, you agree that you are fully responsible for use of the Sites by that child.

Children under the age of 13 may not use the Sites and parents or legal guardians may not agree to these Terms on their behalf. If you are under the age of 18 but at least 13 years of age, you may use the Sites only with the consent of, and under the supervision of, a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian agreeing to these Terms on behalf of a child between the ages of 13 and 18, you agree that you are fully responsible for use of the Sites by that child.

By using this Website, you agree not to:

  1. Abuse, threaten, harass, intimidate, defame, or impersonate other users.
  2. Post or transmit (or cause to be posted or transmitted) any content that is obscene, pornographic, abusive, offensive, profane, infringing, defamatory, or violates any law or right of any third party.
  3. Advertise to, or solicit, any user to buy or sell any products or services. Prior written consent is required from DEMDACO to use any information obtained from the Sites in order to contact, advertise to, solicit, or sell to any user of the Sites.
  4. Use scrapers, robots, spiders or any other means to access the Sites for any purpose including either uploading viruses or other malicious code, preventing or restricting access to the Sites, or imposing an unreasonable work load on our infrastructure.
  5. Post, upload, submit, create, or make available any unsolicited e-mail or spam to any users of the Sites.
  6. Create communication or solicitation designed or intended to obtain user account information such as passwords or any other private information from any user of the Sites.
  7. Utilize framing techniques to enclose any logo, trademark, or other proprietary information (including images, page layout, form, or text) of DEMDACO without express written consent to do so. Meta tags or other hidden text may not be used with DEMDACO’s name or trademark.
  8. Use the Sites for any illegal or unauthorized purpose, including violating any laws (including infringing any trade secrets, copyrights, trademarks, patents, or any other proprietary rights of any party) at the local, state, national or international level.

These Terms May Change

DEMDACO reserves the right to update or modify these Terms at any time without prior notice, unless otherwise required by applicable law. Your use of these Terms following any such change constitutes your agreement to follow and be bound by these Terms as changed, unless otherwise required by applicable law. For this reason, we encourage you to review these Terms each time you use the Sites. These Terms shall remain in full force and effect while you use the Sites. We do reserve the right to refuse any order placed with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order.

Copyright Notice

All of the content you see on the Sites, including, for example, but not limited to, all of the page headers, images, illustrations, graphics, audio clips, and text (referred to herein as the "Content") is the exclusive property of DEMDACO and/or is subject to trademark, service mark, trade dress, copyright and/or other intellectual property rights or licenses held by DEMDACO, by one of its affiliates or by third parties who have licensed or assigned their rights, interests and/or materials to DEMDACO. The entire Content of the Sites is copyrighted as a collective work under U.S. and other applicable copyright laws, and DEMDACO owns a copyright in selection, coordination, arrangement and enhancement of the Content. The Content of the Sites, and the Sites as a whole, are intended solely for the personal and non-commercial use of the users of our Sites. As such a user, you may download, print and store selected portions of the Content, but only if (1) you use any such copies of the Content only for your own personal and non-commercial use, (2) you do not copy or post the Content on any network computer or broadcast the Content in any media and/or in any form or format, (3) you do not modify or alter the Content in any way, or delete or change any copyright or trademark notice, and (4) you properly credit any intellectual property rights to DEMDACO. No right, title or interest in any downloaded or copied materials are transferred to you as a result of any such downloading or copying. DEMDACO reserves complete title and full intellectual property of rights in any Content you download from these Sites. Except as noted above, you may not copy, download, reproduce, modify, publish, distribute, transmit, transfer or create derivative works from the Content without first obtaining the express written permission of DEMDACO.

E-mails, Comments & Testimonials

We welcome your comments regarding our Sites. However, any comments, feedback, notes, messages, ideas, testimonials, suggestions or other communications (collectively, "Comments") sent to us shall be and remain the exclusive property of DEMDACO. Your submission of any such Comments shall constitute an assignment to DEMDACO of all worldwide rights, titles and interests in all copyrights and other intellectual property rights in the Comments. DEMDACO will be entitled to use, reproduce, disclose, publish and distribute any material you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Comments that you do not wish to assign to us, including any confidential information or any original creative materials such as stories, products ideas, computer code or original artwork.

Mobile Messaging

If you have signed up to receive text messages from DEMDACO, you consent to receive automated SMS messages (including text messages) and telephone calls from us, our agents, representatives, affiliates or anyone sending messages or making calls on our behalf to the specific number(s) you have provided to us with information or questions about your account and/or orders and/or marketing offers. Consent is not a condition of purchase or receipt of services. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. DEMDACO and its agents, representatives, affiliates, or anyone sending messages or making calls on our behalf may use such means of communication described in this section even if you will incur costs to receive such calls or text messages. Message frequency may vary. Message and data rates may apply. In the event that you deactivate your mobile number, it is your responsibility to call DEMDACO at 888.336.3226 to have your number removed. Terms & Conditions are subject to change. The mobile carriers are not liable for delayed or undelivered messages.

To view our privacy policy clicking https://www.demdaco.com/privacy-policy/.

Links

DEMDACO is not responsible for any outside sites, services or other materials linked to or from our Sites, does not necessarily share the opinions of statements residing on links to or from our Sites, and disclaims all liability for any injury you may experience by viewing or using such materials.

Colors

We have done our best to display as accurately as possible the colors of the products shown on our Sites. However, because the colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate.

Product & Pricing Information

Most products displayed on our Sites are available in select DEMDACO stores and galleries. In some cases, merchandise displayed for sale on this site may not be available at DEMDACO stores. We make all reasonable efforts to provide information on our Sites is accurate and complete; however, pricing and typographical errors may occur or information may be out of date. There may be information about products, their availability, or their prices that may be inaccurate or incomplete. We reserve the right to correct any such information without prior notice (including after you have submitted your order). The prices displayed on this site are quoted in U.S. Dollars and are valid and effective only in the United States.

Product Availability

Merchandise availability on our Sites is not guaranteed as it may be low in stock. If merchandise is not available by the time your order processes, we will notify you of this via e-mail. You can always verify availability by calling Customer Service at 888.336.3226. You will receive a shipping confirmation e-mail once your items have shipped.

Order Changes and Cancellations

If you'd like to cancel or change your order, please call 888.336.3226 as soon as possible. We'll do everything we can to accommodate your request. But please bear in mind that our order-fulfillment and shipping systems are designed to get orders on their way quickly and efficiently. Therefore, we cannot change or cancel an order once it has entered the shipping process.

Willow Tree® Graphic Standards for DEMDACO Authorized Retailers

As an authorized retailer with DEMDACO, you are required to apply Willow Tree® brand graphic standards to your retail advertising and marketing materials in both print and electronic media.

By adhering to these standards, you protect and strengthen the Willow Tree brand identity, and provide consumers with assurance that their purchase is an authentic Willow Tree product.

  1. Willow Tree® brand and logos
    1. Willow Tree trademarks, logo and copyrights are the intellectual property of Susan Lordi, the artist and creator of the line. Willow Tree® is registered by the United States Patent and Trademark Office, and products, images and logo are protected by US and International copyright and trademark laws.
    2. The Willow Tree logo consists of the graphic image of a willow tree with the words Willow Tree® across it and the signature of Susan Lordi below it. This is the official logo—it is the only one that should be used by retailers in their marketing activities.
    3. Maintain the logo in its original form. Please do not modify the logo to create a hybrid design that incorporates other images or words such as your store logo. Do not separate the components or alter the size relationship.
    4. The logo is ideally printed in black or a dark brown color. Do not reverse logo to white or print in alternate colors.
    5. The words Willow Tree® can appear in any font when written in a text paragraph or to identify an image. The font used in the logo is a customized Papyrus. Do not create some other type of font identity for the brand if you are promoting the entire line of products.
  2. Authorized Use of Willow Tree® logos and images
    1. As part of our Authorized Dealership Policy, only DEMDACO, DEMDACO Account Executives, Licensed International Distributors, or Retail Dealers may use the Willow Tree trademarks, images or logo on or in connection with web sites, products, packaging, manuals, and promotional/advertising materials when they are promoting the sale of Willow Tree brand product, if used in accordance with these Willow Tree® graphic standards.
    2. As outlined in the DEMDACO Authorized Dealership Policy, it is in violation for retailers to use the words ‘Willow Tree’ …as your retail domain name, or as part of your retail domain name. Do not include the brand name as part of your logo, newsletter masthead, email masthead, retail store or online site. (For example: willowtreeangels.com, willowtreestore.com, Country Accent’s Willow Tree Gift Store.)
    3. The DEMDACO Authorized Dealership Policy can be referenced on DEMDACOretailers.com or by contacting DEMDACO Customer Service.
  3. Unauthorized Use of images and logo (by consumers or organizations)
    1. Do not put Willow Tree images on materials not associated with the sale of the product, such as book covers, fliers, gift bags, brochures and business cards. Do not incorporate Willow Tree logo or images into other business logos, website design or other artwork.
    2. Any requests to use Willow Tree images or logo by private individuals or organizations must be reviewed and approved by Susan Lordi, owner of Willow Tree trademark and copyrights.
  4. Correct Identification of Product Images
    1. Whenever a Willow Tree product image is used for brand promotion or advertising, it should be identified with the Willow Tree® logo or the words Willow Tree® in the descriptive text or headline copy. This pertains to brochures, catalog pages, product sheets, websites, advertisements and emails.
    2. Willow Tree should not be used in possessive form. It is not correct to refer to products as Willow Tree’s Angels. It is correct to say Willow Tree® angels or Willow Tree® figures.
    3. There is no word “the” in the product name. It is not correct to say The Willow Tree® Angels and Figures. It is correct to say Willow Tree® angels and figures.
    4. Do not shorten or abbreviate Willow Tree product names. For example, Angel of the Heart, not Angel of Heart. Angel of the Kitchen, not Kitchen Angel.
  5. 4. Use of Trademark Symbol (®)
    1. Willow Tree® is registered by the United States Patent and Trademark Office by artist Susan Lordi.
    2. Whenever the logo or words “Willow Tree” are used (regardless of typestyle), they should be accompanied by ®. The words Willow Tree are typically written with upper and lower case letters.
    3. The symbol is placed immediately after the words Willow Tree, either in superscript or in line with the words. If you don't have the appropriate symbol keys in your word processing software, then you may use the symbol in parenthetical form [i.e., (R)].
    4. The ® should always be used in a headline. If the words Willow Tree are used repeatedly in a paragraph about the product (as in an article or interview), the ® should be used on the first reference on the page. It is not needed on subsequent references in the text or body copy.
  6. Accurate Brand Description
    1. Each Willow Tree product is created by Susan Lordi, and licensed to DEMDACO for manufacture, distribution and marketing. When referencing the Willow Tree brand, it is important to reflect this relationship in your description.
    2. Willow Tree® sculptures are by Susan Lordi, and from DEMDACO
    3. DEMDACO is always spelled in all capital letters.
    4. The brand can be described correctly in many ways, as follows:
    5. Willow Tree® sculptures by Susan Lordi.
    6. Artist Susan Lordi’s Willow Tree® figures are sculpted and carved by hand, then cast in resin.
    7. Each Willow Tree® piece is cast from artist Susan Lordi’s original carving and then painted by hand.
    8. Susan Lordi’s Willow Tree® sculptures from DEMDACO
    9. Artist Susan Lordi hand carves each original piece, capturing natural expression and emotion in each gesture.
    10. A gift of Willow Tree® communicates beyond words.

Thank you for adhering to these guidelines. Consistent graphics will help strengthen the Willow Tree brand, improve customer recognition and ultimately, increase sales.

If you have any questions regarding Willow Tree® Graphic Standards, we would be happy to answer them. Please contact:

DEMDACO Attention: Sales & Marketing 5000 W. 134th Street Leawood, KS 66209

Phone: 913.402.6800 Toll-free: 888.336.3226 Fax: 913.685.8326

Authorized DEMDACO / Willow Tree Reseller Policy

To qualify as and remain as a DEMDACO, Authorized Retailer you must adhere to this Authorized Retailer Policy at all times.

1. Maintain Current Business Information and Disclose All Locations That Carry DEMDACO product

Maintain accurate and up-to-date company information and disclose all retail locations and websites that carry DEMDACO and Willow Tree products throughout the term of your Retailer relationship with DEMDACO.

Qualifying retail locations can only be one of the following: your physical brick and mortar store(s), your commerce-enabled website(s), or any temporary storefronts (events, trade shows, pop up stores, etc.). Any marketing or sales on third-party sites like Amazon, eBay, Sears Marketplace, JET, Google Shopping, Rakuten, Wal-Mart Marketplace, Ali-Baba, Ali-Express, and Taobao are strictly forbidden unless DEMDACO has a signed Online Marketplace Retailer Agreement with your company.

2. DEMDACO® and Willow Tree® Trademarks & Brand Policy

Retailer must comply with DEMDACO and Willow Tree Trademark & Brand Policy and represent yourself as an Authorized Retailer in all online advertising and sales collateral.

Setting up businesses, registering domain names, or using social media usernames that contain the DEMDACO AND/OR WILLOW TREE name or any of DEMDACO or Willow Tree trademarks is strictly prohibited. To ensure compliance with DEMDACO’s Authorized Retailer Policy, you must only use approved marketing materials for all DEMDACO AND WILLOW TREE products which are provide by your sales representative or DEMDACO customer support.

3. Trademarks and Logos for Products, Names, Apps and Websites

Retailer must not use the DEMDACO and Willow Tree Marks in a way that implies partnership, sponsorship, affiliation or endorsement with DEMDACO. You must:

  1. Avoid trademarks, company names, product or feature names, domain names, or social media handles that are confusingly similar to the DEMDACO’s Marks.
  2. Do not use or display the DEMDACO and Willow Tree word marks more prominently than your company, product, or service name.
  3. Do not alter the DEMDACO or Willow Tree Marks. These trademarks are proper names, and should be capitalized accordingly.
  4. Do not use, copy, alter or imitate DEMDACO and Willow Tree logos, trade dress, color scheme, website, products, packaging, icons, marketing materials or photographs.
  5. All uses of the DEMDACO and Willow Tree Marks must be truthful and accurate, and not likely to cause confusion as to source, affiliation or association.
4. DEMDACO’s MAP POLICY

DEMDACO does not, and never will, seek any agreement from an Authorized Retailer that sets minimum resale prices when such agreement is contrary to applicable state or federal law. DEMDACO does not, and never will, seek any agreement from an Authorized Retailer that sets minimum resale prices. In accordance with applicable legal rules, we do advise DEMDACO® Retailers that in accordance with our internal, unilateral policy, DEMDACO may decide not to deal with Retailers that sell the DEMDACO or Willow Tree® line at retail prices below the Suggested Retail Price (SRP).

Retailer must review and understand the detailed DEMDACO® Minimum Advertised Price (MAP) Policy. In accordance with applicable legal rules, and in accordance with our internal, unilateral, policy, DEMDACO has set, and from time to time may exercise its independent business judgment to revise, its Minimum Advertised Price (MAP) policy, as posted on our DEMDACO Retailers website (subject to revision in our business judgment), including but not limited to revisions in one or more products or product lines for specific promotional periods, addressing seasonal changes in product demand, excess inventory issues, or other marketing considerations. In many situations, Demdaco may reflect other approaches appropriate to specific products and market factors such as those described above. DEMDACO’s day-to-day MAP may be revised by DEMDACO to reflect other marketing strategies consistent with our overall strategy. Where retailers decide to advertise our Willow Tree® line or other DEMDACO products in a manner that is inconsistent with our retail policy, we may exercise our right not to make further sales to that account. When such decisions are made, they are not subject to any negotiation or modification. Please note that no DEMDACO Account Executive is authorized to discuss or comment on any aspect of this policy, or any decision made in connection with this policy.

5. Sell to Retail Consumers Only

Retailer may not sell or transfer products in bulk to B2B accounts, wholesalers, or freight forwarders/drop shippers for other retailers, third-party websites like Amazon, bulk purchasers or other Retailers or any other entity, that Retailer knows or should know has intent to resell the Products. Retailer may only sell to persons that are end users of the products.

6. Only Purchase DEMDACO and Willow Tree Products Directly from DEMDACO

Retailer must not buy DEMDACO and Willow Tree products from other retailers, or from other sources not explicitly endorsed by DEMDACO.

7. Only Sell DEMDACO and Willow Tree Products in Original Packaging

Retailer may not alter original DEMDACO packaging in any way prior to reselling DEMDACO and Willow Tree Products. Removing DEMDACO and Willow Tree Products from packaging, altering or changing UPC codes, changing or removing expiration dates, altering trademarks, removal or altering of serial numbers, tracking codes, or any other identifying information and reselling DEMDACO and Willow Tree Products in any condition other than sold by DEMDACO is strictly prohibited.

8. No Comingling Of Products

Retailer may not sell to websites like Amazon, Wal-Mart Marketplace or any other third-party seller or website or allow DEMDACO and Willow Tree products to be comingled with any other products, including DEMDACO and Willow Tree authorized products from other authorized DEMDACO sellers.

9. No Bundling DEMDACO and Willow Tree Products without Obtaining Permission

Retailer must not re-SKU or bundle DEMDACO products in your online assortments and data feeds without receiving prior written permission from DEMDACO.

10. Bulk Sales Customer Confusion

Retailer will not advertise, market, display or demonstrate non-DEMDACO products together with DEMDACO and Willow Tree products in a manner that would create the impression that DEMDACO’s products are made by, endorsed by or associated with another supplier.

11. Sell on Approved Retail Website(s) Only

Retailer must only take orders via publicly accessible, e-commerce enabled web pages hosted on approved websites owned and operated by your company.

Selling on third-party sites (eBay, Amazon, Alibaba, Wal-Mart, Sears, JET, etc.), drop-ship accounts (Buy.com, Newegg.com, Overstock.com, etc.), classified sites (Craigslist.com, Facebook Marketplace, etc.) or through direct messages on forums, or through Social Media Accounts like (Facebook, Twitter, Instagram, etc.) is strictly prohibited.

12. Provide Quality Customer Service

Retailer and Retailer’s sales personnel shall be familiar with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise end-user customers on the selection and safe use of the Products, as well as any applicable return policy. Retailer must provide customer service solutions promptly that will respond to customer questions and concerns both before and after sale of the Products. Retailer and Retailer’s agents must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of DEMDACO. Retailer agrees to cooperate fully with DEMDACO in any investigation or evaluation of such matters.

13. Product Care, Quality Controls & Material Differences

Product Storage and Handling: Products delivered to and under the care of the Retailer shall be stored in a safe manner that protects the DEMDACO and Willow Tree products, and brand reputation by storing them in a cool, dry place, away from direct sunlight, extreme heat, and dampness, and in accordance with any additional DEMDACO storage guidelines that may be specified by the DEMDACO from time to time.

Product Inspections: Retailer upon receipt of the Products shall inspect the Products received by the DEMDACO for damage, defect, or other nonconformance (collectively, “Defects”). If the products are damaged or defective Retailer must not offer the Products for sale. Retailer shall report the defect immediately to the DEMDACO at support@demdaco.com.

Recall of Products. The DEMDACO reserves the right to recall Products that are defective or a risk to the consumers safety. Retailer shall cooperate with any and all safety information dissemination programs, or Recall efforts of the DEMDACO. Once a recall has been announced the Retailer must not offer the Product for sale, and must promptly report the defect to the DEMDACO at support@demdaco.com

Product Warranties & Guarantees The DEMDACO provides a Product warranty that includes a 100% satisfaction guarantee that Retailer must familiarize themselves with and honor according to the DEMDACO and Willow Tree offerings and policies.

14. Ensure PCI Compliance

Retailer must ensure PCI (payment card industry) compliance for all approved commerce- enabled websites owned and operated by your company.

15. Maintain Updated Privacy Policy

Retailer must publish and maintain a publicly accessible privacy policy on their website(s)

Failure to comply with all of the terms in DEMDACO’s Authorized Retailer Policy will result in suspension or termination of your account

California Transparency in Supply Chains Act

Vendor Code of Conduct

DD Traders DBA DEMDACO aspires to conduct business proceedings in an ethical manner with full respect for the value of human life.

DEMDACO aspires to conduct business proceedings in an ethical manner with full respect for the value of human life.We expect our vendors and business partners to comply with a firm set of working conditions that represent the values we hold essential when conducting business. We distribute our Vendor Guidelines, which includes our Code of Conduct, to our vendors. Our Code of Conduct represents the basic requirements regarding these working conditions and ethics that must be followed by all business partners including manufacturers, contractors, subcontractors, and suppliers when engaging in business with DEMDACO or any corporation represented by DEMDACO.

This includes provisions that explicitly prohibit the use of any forced, compulsory, or involuntary labor, and outlines policies requiring our vendors to follow all applicable laws and regulations.

Monitoring of Vendor Compliance

DD Traders has a verification program conducted by a third-party company to perform semi-announced social compliance audits of select vendors.

Internal Corporate Practices

DEMDACO requires our merchandisers and other staff interfacing with our vendor base to understand, follow, and promote the policies within our Code of Conduct and to take this into consideration when selecting the vendors we do business with.

With the assistance of a recognized third-party company, we have also developed related training materials for our teams that interface with our vendor base.

The California Transparency in Supply Chains Act of 2010 (SB 657) requires many retailers, distributors, and manufacturers doing business in the State of California to provide information regarding their efforts to eradicate slavery and human trafficking in their supply chains

Disclaimer

The Sites and all contents on the Sites are provided on an "as is" basis without warranties of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose. You acknowledge, by your use of our Sites, that your use of the Sites is at your sole risk, that you assume full responsibility for all costs associated with all necessary servicing or repairs of any equipment you use in connection with your use of our Sites, and that neither DEMDACO nor any of its employees, directors, officers, agents or affiliates shall be liable for any damages or injury of any kind, including but not limited to direct, indirect, incidental, extraordinary, exemplary, punitive and/or consequential damages related to, accompanying or resulting from your use or inability to use this site. These include, but are not limited to, damages or injury caused by any use of (or inability to use) the Sites or any website you hyperlink from our Sites, failure of performance, error, omission, inaccuracy, interruption, defect, delay in operation or transmission, computer virus, or line failure.

Without limiting the foregoing, DEMDACO does not represent or warrant that the information on the Sites is accurate, complete, reliable, useful, timely or current or that the Sites will operate without interruption, without error or without defects, bugs, viruses, or other harmful components.

You agree not to disrupt, overwhelm, attack, modify or interfere with the Sites or its associated software, hardware and/or servers in any way, and you agree not to impede or interfere with others’ use of the Sites. You further agree not to alter or tamper with any information or materials on or associated with the Sites.

Indemnification

You agree to defend, indemnify and hold DEMDACO harmless from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your use of the site, including, without limitation, your use of the Sites in violation of these Terms.

Dispute Resolution and Arbitration

 

  • Disputes. This section applies to all Disputes between you and DEMDACO. “Dispute” shall mean any dispute, claim, controversy or action between you and DEMDACO, including but not limited to disputes concerning these Terms, your use of the Service, and any other dispute whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. “DISPUTE” DOES NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY DEMDACO FOR (1) TRADE SECRET MISAPPROPRIATION; (2) PATENT INFRINGEMENT; (3) COPYRIGHT INFRINGEMENT OR MISUSE; AND/OR (4) TRADEMARK INFRINGEMENT OR DILUTION.
  • Opt-Out. You may opt-out of the arbitration procedures and the waiver of class and representative proceedings below sending a written letter to DEMDACO at customersupport@demdaco.com within thirty (30) calendar days of your initial agreement to these Terms (including your first use of the Service) that specifies: (1) your name; (2) your mailing address; (3) and your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section. In the event that you opt-out consistent with the procedures set forth above, all other terms of these Terms shall continue to apply, including the duty to provide a Dispute Notice and mediate any Disputes, if applicable.
  • Dispute Notice. In the event of a Dispute, you or DEMDACO must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to DEMDACO must be addressed to customersupport@demdaco.com (“DEMDACO Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you, or via email if we do not have any such address on file. Within 60 calendar days upon either party receiving the Dispute Notice, the parties shall engage in a good faith informal dispute resolution conference, whether by phone, e-mail, or other channel as agreed between the parties. You and DEMDACO will work in good faith to schedule the informal conference at a mutually convenient time. If you are represented by counsel, your counsel may participate in the informal dispute resolution conference, but you shall also fully participate in such discussions. The arbitrator may dismiss any arbitration brought without first proceeding through the informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
  • Mediation. In the event the parties cannot resolve the Dispute via the informal dispute resolution conference, the Dispute must first be submitted to non-binding mediation before a neutral third party before it may proceed to arbitration. Selecting the mediator, the appropriate terms for mediation (including costs), and a date for mediation shall be negotiated in good faith between the parties. The administrative fees associated with mediation shall be negotiated between the parties, but you will not be required to pay any such fees that exceed those fees you would be required to pay if proceeding in a court of law. Such fees also will not include attorneys’ fees and costs, if any, unless awarded during mediation. If the parties cannot agree to appropriate terms concerning mediation, the parties shall be entitled to proceed with an arbitration proceeding pursuant to this section. The arbitrator may dismiss any arbitration brought without first proceeding through the informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
  • Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state, municipality, province or territory if the action is within that court’s jurisdiction and is pending only in that court.
  • Binding Arbitration. If the informal resolution and mediation processes do not resolve the Dispute, you and DEMDACO agree: (1) to arbitrate all Disputes pursuant to the provision of these Terms, to the extent applicable; (2) these Terms memorialize a transaction in interstate commerce; (3) the Federal Arbitration Act (9 U.S.C. § 1, et seq.) governs the interpretation and enforcement of this Section (notwithstanding the choice-of-law provision contained herein); and (4) this Section shall survive termination of these Terms.
  • CLASS ACTION WAIVER. TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU MAY BRING DISPUTES AGAINST DEMDACO IN AN INDIVIDUAL CAPACITY ONLY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS.
  • MASS ACTION WAIVER. You and DEMDACO agree that any Dispute between you shall be resolved only in an individual arbitration pursuant to this Section. You and DEMDACO expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a Mass Action, as defined below, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any Mass Action to award relief to anyone but the individual in arbitration, unless otherwise provided in this section. “Mass Action” includes instances in which you or DEMDACO are represented by a law firm or collection of law firms that has filed 25 or more arbitration demands of a substantially similar nature against the other party within 180 days of the arbitration demand filed on you or DEMDACO ’s behalf, and the law firm or collection of law firms seek to simultaneously or collectively administer and/or arbitrate all arbitration demands in the aggregate. Notwithstanding this section, nothing prevents you or DEMDACO from participating in a mass settlement of claims.
  • Special Master Appointment. In the event there is a dispute concerning the Mass Action Waiver, the parties agree to resolve such dispute before a Special Master appointed by the arbitration provider and agreed to between the parties. The Special Master shall have authority to resolve disputes concerning: (i) filing fees owed with respect to any Mass Action; (ii) any dispute regarding whether this arbitration agreement has been followed; (iii) whether claimants are barred from proceeding with a Mass Action; (iv) any dispute relating to the representation of the same claimant by multiple law firms; (v) any dispute regarding discovery common to all claims; and (vi) any disputes regarding legal or factual issues common to all claims. If the Special Master determines you violated the Mass Action Waiver, either party shall have the opportunity to opt-out of arbitration within 30 calendar days of the arbitrator’s decision. You may opt-out of arbitration by providing a written notice to customersupport@demdaco.com. DEMDACO may opt-out of arbitration by sending written notice of its intention to the arbitration provider and to you or your attorney, agent, or representative. For the avoidance of doubt, the ability to opt-out of arbitration at this stage in the proceedings only applies if the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver. If the parties proceed with arbitration, the parties agree to the batching procedures below.
  • Batching. After proceedings before the Special Master have concluded, and to the extent any Mass Actions are permitted to proceed, the parties agree that Mass Actions will be batched into groups of no more than 200 demands per batch by state of residence (with any remaining demands batched into a single group). The parties shall inform the arbitrator of the batches and their composition within 14 calendar days of the conclusion of proceedings before the Special Master. The arbitrator provider shall treat each batch of claims as one case, with each case having one demand for arbitration, one appointed arbitrator, and one set of administrative documents and filing fees per batch. The parties shall randomly assign sequential numbers to each batch, and only one batch shall proceed to arbitration at a time in the order of the random sequential numbers. A separate arbitrator will be appointed to, and administrative and filings fees assessed for, each batch as the batch proceeds to arbitration.
  • Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be administered by the American Arbitration Association (“AAA”) and be governed by the AAA Commercial Arbitration Rules and Mediation Procedures (“AAA Commercial Rules”), and other applicable rules, including the AAA Consumer Arbitration Rules (“AAA Consumer Rules”), as modified by these Terms of Service. The AAA Commercial Rules and AAA Consumer Rules are available at adr.org. If there is a conflict between the AAA Commercial Rules and AAA Consumer Rules and the rules set forth in these Terms of Service, the rules set forth in these Terms shall govern. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of these Terms. The arbitrator, and not any federal, state, provincial, territorial or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or all be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
  • Hearing Format. Unless otherwise agreed, the arbitration shall take place in Kansas, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses). In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, in any, is based. During the arbitration, the amount of any settlement offer made by DEMDACO or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or DEMDACO is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
  • Arbitration Fees. The arbitration fees are governed by AAA’s Commercial Arbitration Rules and Mediation Procedures Administrative Fee Schedule (“Commercial Fee Schedule”) or Consumer Arbitration Rules Costs of Arbitration (“Consumer Fee Schedule”), as applicable, and as modified by these Terms. AAA’s Commercial Fee Schedule and Consumer Fee Schedule are available at adr.org. You agree that if you initiate the arbitration, you will pay your filing fee. You shall not be required to pay a filing fee that exceeds any amounts you would otherwise be required to pay by applicable law when filing a claim in a court of relevant jurisdiction. You are responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses.
  • Arbitrator’s Authority. All issues of arbitrability shall be reserved to the arbitrator. The arbitrator may award relief, including but not limited to monetary, declaratory, injunctive or other equitable relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief. The decision of the arbitrator shall be in writing and shall briefly set forth the essential findings of fact and legal analysis. A judgment to enforce the award may be entered by a court of competent jurisdiction, however, any award that has been satisfied may not be filed or entered into court.
  • Binding Authority / Confidentiality. The parties agree that that they are each waiving their right to a trial by jury to the maximum extent permitted by law, and that the arbitrator’s award shall be final and binding unless the parties otherwise agree in writing. All arbitration proceedings will be confidential and closed to the public and any parties other than you and DEMDACO.
  • Amendments to this Section. Notwithstanding any provision in these Terms to the contrary, you and DEMDACO agree that if DEMDACO makes any material amendments to the dispute resolution procedure and class action waiver provisions in these Terms, DEMDACO will notify you and you will have thirty (30) calendar days from the date of notice to affirmatively opt-out of any such amendments by sending a written letter to the DEMDACO Notice Address that specifies: (1) your name; (2) your mailing address; and (3) your request to opt-out of such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
  • Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.
  • Exclusive Venue For Other Controversies. DEMDACO and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the courts located within the State of Kansas and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such.

 

General

These Terms of Use are governed by and shall be construed in accordance with the laws of the State of Kansas, without regard to any conflict of law provisions. Any action or proceeding arising out of or related to the Terms of Use, our Privacy and Security policy, or your use of this Website must be brought in the state of federal courts of Kansas and you consent to the exclusive personal jurisdiction of such courts.

Please review the above terms and conditions (‘Terms of Use’) and our other policies that govern your visit to our Site and your use and purchase of products from this Website (collectively, ‘Use’). Your Use of this Website constitutes your acceptance of, and agreement to follow and be bound by, such policies and by the Terms of Use. DEMDACO reserves the right, at any time, to modify, alter or update this Website, policies and these Terms of Use.

The website is operated by DEMDACO. All inquiries may be directed to:

Mail: DEMDACO 5000 W. 134th Street Leawood, KS 66209

E-Mail: customercare@demdaco.com Phone: 888.336.3226 Fax: 913.814.0681

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