Privacy Policy
This Privacy Policy describes how DD Traders, Inc. dba DEMDACO (“DEMDACO”, “we”, “us”, or “our”) collects, uses, stores, and shares your information when: (1) you access and/or use the Santa’s Kindness Ornament (“SKO”), including any related websites and/or mobile applications (“SKO Websites”); and (2) when you communicate with us in any manner concerning the SKO.
Acknowledgment
BY USING THE SKO, SKO WEBSITES, OR COMMUNICATING WITH US IN ANY MANNER, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTOOD THIS PRIVACY POLICY.
What Information Do We Collect?
We collect information from and about you when you use the SKO, SKO Websites, and communicate with us, including when you register an account, update your profile, access our content, make a purchase within the SKO and SKO Websites, or engage with our customer support team. This information includes:
- Basic Identifying Information. Information such as your full name, telephone number, e-mail address, phone number, account name, username, and account password.
- Device Identifier and other Unique Identifiers. Information we collect automatically when you engage with the SKO and SKO Websites, or engage in communications with us, such as your device identifier, internet protocol (IP) address, cookies, beacons, pixel tags, mobile ad identifier, and other unique identifiers. For more information, see Cookies and Related Technologies below.
- Internet or Other Network Activity. Information regarding your interactions with the SKO Websites.
- Geolocation Information. Information that permits us to determine your general location, such as zip code.
- Commercial Information. Information such as your preferences and history of activity with the SKO and SKO Websites.
- Demographic Information. Information such as number of members in your household, your age, and other demographic information, from time to time.
- User Content. Information such as your communications with us and any other content you provide, such as comments, product reviews, testimonials, and other content.
- Audio Information. Information such as recordings of your voice (such as when we record customer service calls for quality assurance).
How Do We Use Your Information?
We may use the above information for a variety of purposes, including to:
- Fulfill your requests and respond to email questions;
- Support our core business functions, such as order fulfillment, internal business process management, authentication, loss and fraud prevention, and public safety functions;
- Communicate with you about the SKO and SKO Websites;
- Provide the SKO to you;
- Improve the SKO and SKO Websites;
- Statistically analyze the usage of the SKO and SKO Websites;
- Contact you;
- Resolve disputes, investigate problems, and enforce our terms;
- Help diagnose problems with our server, manage the SKO and SKO Websites, and to enhance the SKO; and
- Perform a business transaction, such as a merger, acquisition, sale of assets, bankruptcy, or related transactions.
How Do We Disclose Your Information?
We may disclose your information in the following circumstances:
- With Your Consent. We may disclose or make available your information with your consent, which may be obtained in writing, online, through “click-through” agreements, when you accept our terms for our Sites, or by other means.
- With Service Providers & Business Partners. We may disclose or make available your information with our third party service providers, affiliates and subsidiaries, business partners, those that provide customer service, and those third parties that help protect against malicious, deceptive, fraudulent, or illegal activity.
- In A Business Transfer. We may disclose or make available your information as part of a business transaction, such as a merger or acquisition, joint venture, corporate reorganization, financing, or sale of company assets, or in the unlikely event of insolvency, bankruptcy, or receivership, in which such information could be transferred to third parties as a business asset in the transaction.
- For Legal Process & Protection. We may disclose or make available your information to satisfy any law, regulation, legal process, governmental request, or where we have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to: (1) enforce or apply agreements, or initiate, render, or bill for use of the Sites; (2) protect our rights or interests, property or safety or that of others; (3) in connection with claims, disputes, or litigation - in court or elsewhere; (4) protect users of our Sites and other carriers, providers, or partners from fraudulent, abusive, unlawful, or otherwise improper use of our Sites; (5) facilitate or verify the appropriate calculation of taxes, fees, or other obligations due to a local, state, or federal government.
Cookies and Related Technologies
Cookies help us improve the SKO Websites providing us with information about which parts of the SKO Websites are most popular, enabling us to analyze technical and navigational information about the SKO Websites, and helping us to detect and prevent fraud. We also use cookies and other data collection tools (such as web beacons and server logs) to help improve your experience with the SKO Websites.
We also use analytics services, such as Google Analytics, to help us understand how users access and use the SKO Websites, as well as help us understand market trends and popularity of our products and services. You can learn more about Google Analytics by vising How Google uses information from sites or apps that use our services.
How Do We Secure Your Information?
Although no system or website can guarantee the complete security of your information, we take all commercially reasonable steps to ensure your information is protected in accordance with all applicable laws and regulations, as appropriate to the sensitivity of your information.
How Long Do We Keep Your Information?
We keep your information for as long as is necessary in accordance with the purpose for which it was collected, our business needs, and our legal and regulatory obligations. If we dispose of your information, we will do so in a way that is secure and appropriate to nature of the information subject to disposal.
Your Choices
We provide you the ability to exercise certain controls over how we collect, use, and share your information. Please note, if you are a California resident, you may have additional rights (see Your California Rights below).
- Right to Correction. You may at any time submit a request to change the information we have about you by sending us an e-mail with the subject line “CORRECTION” to customersupport@demdaco.com.
- Opt-Out of DEMDACO Communications. From time to time, we may send you various types of communications, including direct mail such as our catalogs, e-mails, marketing messages, and other informational messages. To opt-out of receiving our e-mail communications, please send us an e-mail with the subject line “UNSUBSCRIBE - EMAILS” at customersupport@demdaco.com or by clicking “UNSUBSCRIBE” at the bottom of any e-mail you’ve received. To opt-out of receiving our direct mail communications, including our catalog, please send us an e-mail with the subject line “UNSUBSCRIBE - MAILING” at customersupport@demdaco.com or by calling us at 855.223.5692. Please note, if you opt-out of receiving our direct mail communications, your information also will not be shared with our direct mail marketing partners. Please also note that even if you unsubscribe from our e-mail or direct mailing communications, we may still send you non-marketing messages relating to order confirmations and other transactional information.
- Opt-Out of Sharing Your Information For Advertising and Marketing Purposes. From time to time, we may share your information with third parties to facilitate certain advertising and marketing. Those third parties may, in some instances, use your information for their own commercial purposes. To opt-out of having your information shared these advertising and marketing partners, please send us an e-mail with the subject line “OPT-OUT” at customersupport@demdaco.com or by calling us at 855.223.5692. If you are a California or Nevada resident, you may also submit a request to opt-out of the “sale” of your information by clicking here Do Not Sell or Share My Personal Information.
- Managing Cookies You may wish to restrict the use of cookies or completely prevent them from being set. Most browsers provide for ways to control cookies, such as the length of time they are stored. If you disable cookies, please be aware that some of the features of our Website may not function correctly. To find out more about how you can manage and delete cookies, please visit www.aboutcookies.org. For more details on your choices regarding use of your web browsing activity for interest-based advertising, you may visit http://networkadvertising.org, http://optout.aboutads.info, or http://youradchoices.com.
California Residents
Definitions
- Personal information. Information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, to you or your household.
- Sensitive personal information. Social security number, driver’s license number, state identification card, passport number, account log-in and password, financial account and password, debit or credit card number and access code, precise geolocation information, race, ethnic origin, religious or philosophical beliefs, union membership, the content of your mail, email or texts other than those communications with us, genetic data, biometric information, health information, and information that concerns your sex life or sexual orientation.
- Sell, sale, or sold. Selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or other means, your personal information to a third party for money or other valuable consideration.
- Share, shared, or sharing. Sharing, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or other means, your personal information to a third party for cross-context behavioral advertising, whether for monetary or other valuable consideration.
Your Rights
To process any request below, we must be able to verify your identity. In order to do so, you must provide the information we request as part of the verification process, such as your contact information and an additional identifier based on your relationship with us. Please note, you can designate an authorized agent to make the below requests on your behalf. When you use an authorized agent, you must provide the authorized agent with written permission to do so, and, in certain circumstances, we may ask you to verify your own identity directly with us. We may deny a request from an authorized agent that does not submit proof that they have been authorized by you to act on your behalf.
To submit any of the requests below, you may send us an e-mail to customersupport@demdaco.com or by contacting customer service by 855.223.5692.
- Right to Know. You have a right to request that we disclose, up to two times per year, what personal information we’ve collected about you.
- Right to Delete. You have a right to request deletion your personal information, subject to certain exceptions.
- Right to Correct. You have a right to ask that we correct the personal information we have about you, subject to certain exceptions.
- Right to Opt-Out of the Sale or Sharing of Your Personal Information. You have a right to opt-out of the sale or sharing of your personal information. You may exercise this right either through the submission process above or https://privacy.demdaco.com/consumer/index.
- Right to Non-Discrimination. You have a right to exercise the above rights without being discriminated against.
Notice of Collection
- To learn more about the categories of personal information we collect about California residents, please see What Information Do We Collect?
- For more information about how we use those categories of personal information, please see How Do We Use Your Information?
- For more information about how we collect categories of personal information, please see What Information Do We Collect and Cookies And Related Technologies above.
- To learn more about how we disclose categories of personal information, and the categories of third parties with whom we disclose such information, please see How Do We Disclose Your Information? above.
- To learn more about how long we keep your information, please see How Long Do We Keep Your Information?.
Notice of Disclosure for a Business Purpose
To learn more about the categories personal information we have disclosed for a business purpose, and the categories of third parties with whom we’ve disclosed such information, please see How Do We Disclose Your Information? above.
Notice of Sale and Sharing
We “sell” and “share” your personal information through the use of certain Third Party tools on the Sites, including those relating to analytics and advertising. Specifically, we make available certain of your online identifiers and other persistent online identifiers with advertising, analytics, and marketing partners that may be considered a “sale” or “sharing” of your personal information, as defined under California law. We don’t sell or share the personal information or sensitive personal information of any California resident who is 16 years or younger.
Notice of Use of Sensitive Personal Information
We do not use California resident sensitive personal information for any purpose other than is permissible under the CCPA. Specifically, we do not use sensitive personal information of California residents to derive characteristics about California residents. 7/19/2023
Contact Us
customersupport@demdaco.com
855.223.5692
Terms of Use
Introduction
These Terms of Use (“Terms”) constitute an enforceable agreement between you and DD Traders, Inc. dba DEMDACO (“DEMDACO”, “we”, “us” or “our”) governing your access and use of the Santa’s Kindness Ornament (“SKO”) and related websites and/or mobile applications (“SKO Websites”) (collectively, the “Services”).
Acknowledgment
BY ACCESSING AND USING THE SERVICES, YOU AGREE TO BE BOUND AND ABIDE BY THESE TERMS.
Arbitration / Dispute Resolution Notice
YOU AGREE THAT ANY DISPUTE BETWEEN YOU AND DEMDACO CONCERNING YOUR ACCESS AND USE OF THE SERVICES WILL BE RESOLVED BY THE DISPUTE RESOLUTION PROCEDURES OUTLINED IN SECTION 16 BELOW, INCLUDING BUT NOT LIMITED TO INDIVIDUAL ARBITRATION. YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, OR MASS ARBITRATION, AS DEFINED BELOW. FOR MORE INFORMATION ABOUT THIS PROCESS, AND HOW YOU CAN OPT-OUT OF THE PROCESS, SEE SECTION 16 BELOW.
Eligibility
You must be an adult over the age of 18 years of age, or the age of consent in the state of your residence, in order to create an account and use the Services. If you do not meet these requirements, you may not create an account or register for the Services.
Account Creation
- Creating an Account. You must create an account with DEMDACO in order to use the Services. To create an account, you will be required to submit your name, e-mail address, telephone number, address, and provide a password. It is a condition of your use of the Services that all information you provide through the Services is accurate, correct, current, complete, and free from any viruses, unlawful, or otherwise harmful information.
- Account Confidentiality. You must treat your account username and password as confidential and must not disclose such information to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of it using your username, password, or other related information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security of such information.
- Disabling the Account. We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you or any other user has violated any provision of these Terms.
- Keeping the Account Active. You must use your account to keep it active. We have the right to disable any account that is deemed to be inactive by us in our sole discretion.
- Fraudulent Use. If we reasonably suspect that your account is at risk of being used by a third party fraudulently (for example, as a result of an account compromise), we may suspend your account until you can reclaim ownership. Based on the nature of the compromise, we may be required to disable access. We reserve the right to disable any account that is deemed to have been potentially or actively compromised in our sole discretion.
- Account Ownership. You understand and acknowledge that you have no ownership rights in your account on the Services, and that if you cancel your account or your account is terminated, all information you have submitted as part of your account will be marked as deleted in and may be deleted from our systems. Information may be retained in our sole discretion.
Trademark and Acceptable Use
- Protected Materials. The Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (collectively, “Materials”) are owned by DEMDACO, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
- Marks. The trademarks, service marks, trade dress, trade names, and logos contained on the Services, including but not limited to the DEMDACO name and logo and other trademarks registered in the United States (collectively, “Marks”) are the sole property of DEMDACO or those brands to which the Marks apply. In addition, all page headers, custom graphics, and custom icons on the Services relating to DEMDACO are Marks of DEMDACO.
- Limited Use. These Terms permit you to use the Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Services, except as follows:
- Your computer may temporarily store copies of such materials incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Sites for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
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- Prohibited Uses. You must not:
- Modify copies of any materials from our Services.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Sites.
- Access or use for any commercial purposes any part of the Services or content contained therein.
- Termination of Access. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of these Terms, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by DEMDACO. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
Trademark and Acceptable Use
- User Contributions. The Services contain interactive features and capabilities (the “Interactive Services”) that allow users to post, submit, publish, display, or transmit information and documents (collectively, “User Contributions”). All User Contributions must comply with the standards and rules set forth in these Terms.
- Confidentiality of User Contributions. Any User Contributions submitted through the Services will be considered non-confidential, non-proprietary, and the property of DEMDACO. Demdaco reserves the right to use, share, disclose, modify, display, distribute, and otherwise process any User Contributions for any purpose.
Notice of Copyright Infringement
- Copyright Infringement Notice. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512), DEMDACO has implemented procedures for receiving written notification of claimed infringements. DEMDACO has also designated an individual to receive notices of claimed copyright infringement. If you believe in good faith that your copyright has been infringed, you may submit such a request to customersupport@demdaco.com containing the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description specifying the location on our website of the material that you claim is infringing;
- Your email address and your mailing address and/or telephone number;
- 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; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
- Counter-Notice. If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a Counter-Notice, pursuant to the Digital Millennium Copyright Act, by sending a Counter-Notice to customersupport@demdaco.com containing the following information:
- Your physical or electronic signature;
- Identification of the material removed or to which access has been disabled;
- A statement under penalty of perjury that you have a good faith belief that removal or disablement of the material was a mistake or that the material was misidentified;
- Your full name, your email address, and your mailing address.
Prohibited Uses
You may use the Services only for lawful purposes and in accordance with these Terms. You agree not to use the Services:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- In any way that violates US international trade laws (including, without limitation, any laws and regulations implementing US and international sanctions programs on individuals, entities, or persons in sanctioned countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate DEMDACO, a DEMDACO employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm DEMDACO or users of the Services, or expose them to liability.
Additionally, you agree not to:
- Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material available through the Services.
- Use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Services.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
Enforcement and Termination
DEMDACO reserves the right, at any time, to:
- Take any action with respect to any use of our Services that we deem necessary or appropriate in our sole discretion, including if we believe that such use violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for DEMDACO.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
- DEMDACO reserves the right to cancel your account, profile, User Contributions, or other related activities. Any decision by DEMDACO relating to the cancellation, termination, or suspension of any member account or related DEMDACO Rewards shall be final and binding.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone submitting any materials on or through the Services.
Links
If the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to our Services, you do so entirely at your own risk and subject to these Terms of use for such websites.
Disclaimer of Warranties
TO THE FULLEST EXTENT PROVIDED BY LAW, DEMDACO MAKES THE FOLLOWING REPRESENTATIONS. YOUR USE OF THE SERVICES, ITS CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER DEMDACO NOR ANY PERSON ASSOCIATED WITH DEMDACO MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER DEMDACO NOR ANYONE ASSOCIATED WITH DEMDACO REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, DEMDACO HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL DEMDACO, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO IT, ANY PRODUCTS OBTAINED THROUGH THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. TO THE EXTENT ANY SUCH DAMAGES ARE REQUIRED BY APPLICABLE LAW, THEY SHALL BE CAPPED AT ONE HUNDRED DOLLARS ($1,000) (US). THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Indemnification
You agree to defend, indemnify, and hold harmless DEMDACO, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to: (1) your violation of these Terms; (2) your violation of any law, rule, regulation, or authority in connection with your use of the Services; (3) any negligent, reckless, or intentional acts or omissions committed by you in connection with your use of the Services; (4) any claim against DEMDACO that your use of the Services infringes the rights of a third party, including relating to any claim for patent, copyright, trademark, or trade secret infringement; (5) any claim against DEMDACO for libel, false advertisement, slander, defamation, copyright infringement, trademark infringement, false designation of origin, infringement of moral rights, disparagement, violation of privacy, publicity, identity, or other proprietary of rights, violation of patent or shop rights, piracy or plagiarism that arises out of your use of the Services.
Force Majeure
Under no circumstances shall DEMDACO be held responsible or liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war (including but not limited to cyber related events and/or occurrences attributed to state and/or quasi-state actors by either public or privacy organizations and/or entities and/or governments), governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, lighting, or air conditioning.
Dispute Resolution / Arbitration
- Disputes. The terms of this section shall apply to all Disputes between you and DEMDACO. For the purposes of this section, “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 Services, and any other dispute whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. YOU AND DEMDACO AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS OF USE SHALL 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 specified in these Terms by 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 Services) 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.
- Binding Arbitration. You and DEMDACO agree: (1) to arbitrate all Disputes between you and DEMDACO 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.
- 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.
- 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’ 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 in equity. The arbitrator’s award shall 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.
California Consumer Notice
California users are entitled to the following consumer rights notice: The Services are provided by DEMDACO. If you have a question or complaint regarding the Services, please contact us by writing to customersupport@demdaco.com. 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.
Governing Law, Jurisdiction, Venue
This Agreement will be governed by and construed in accordance with Kansas. If for any reason a court of competent jurisdiction or arbitrator finds any provision or portion of this Agreement to be unenforceable, the remaining portion of this Agreement will continue in full force and effect.
Waiver and Severability
No waiver by DEMDACO of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of DEMDACO to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
Entire Agreement
These Terms constitute the sole and entire agreement between you and DEMDACO regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.
Contact Us
All other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to customersupport@demdaco.com
