Terms of Use

Last Updated: December 19, 2023

Brooklyn Bedding, LLC d/b/a Dreamfoam Bedding, its affiliates and subsidiaries (collectively, “we,” “us,” or “our”) welcome you. We invite you to access and use the websites we own or control, including but not limited to the websites for the brands we own or control (collectively, the “Websites” and each, a “Website”), services that are made available through the Websites (the “Services”), and products that are made available for purchase through the Websites (“Products”), subject to the following terms and conditions (“Terms of Use”). BY BROWSING THE PUBLIC AREAS OF ANY OF THE WEBSITE, ACCESS AND/OR USING THE SERVICES AND/OR BY PURCHASING PRODUCTS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE AND THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY (THE “PRIVACY POLICY”), WHICH ARE HEREBY INCORPORATED INTO THESE TERMS OF USE AND MADE A PART HEREOF BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”). IF YOU DO NOT AGREE TO ANY OF THE TERMS IN THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITES, THE SERVICES AND/OR PURCHASE OUR PRODUCTS.

We reserve the right, at our sole discretion, to modify, discontinue, or terminate any of the Website, Services, Products or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Websites. By continuing to access or use any of the Website after we have posted a modification on the Website, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Website and the Services.

If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

1.USE OF PERSONAL INFORMATION

Your use of the Websites, Services and/or purchase of Products may involve the transmission of certain personal information to us. Our policies with respect to the collection and use of such personal information are governed according to our Privacy Policy (located at https://dreamfoambedding.com/pages/privacy-policy), which is hereby incorporated by reference in its entirety.

2.ELIGIBILITY

The Websites and the Services are available for individuals aged 13 years or older. If you are under 13 years of age, please do not use the Websites and the Services. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.

3.TERMS AND CONDITIONS OF SALE

Your purchase and use of our Products and Services will also be governed by our Terms and Conditions of Sale available at https://dreamfoambedding.com/pages/terms-and-conditions (“Terms and Conditions for Sale”), which are hereby incorporated into these Terms of Use by reference. If there is a conflict or inconsistency between these Terms of Use and the Terms and Conditions of Sale, the Terms and Conditions of Sale will govern with respect to the Products and Services you purchase.

4.COMMUNITY GUIDELINES

Our community, like any community, functions best when its members follow a few simple rules. By accessing and/or using the Websites, the Services and/or purchasing the Products, you hereby agree to comply with these community rules:

You will not use the Websites or the Services for any unlawful purpose, including any fraudulent activity, or to engage in any commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme;

You will not access or use the Websites or the Services to collect any market research for a competing business;

You will not upload, post, e-mail, transmit, or otherwise make available any content that:

a. infringes any copyright, trademark, or other proprietary right of any person or entity; or

b. is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or

c. discloses any personal information about another person, including that person’s name, e-mail address, postal address,

phone number, credit card information, or any similar information;

You will not “stalk,” threaten, or otherwise harass another person;

You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;

You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Websites or the Services;

You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Websites, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;

You will not create multiple accounts for yourself for any reason, including, without limitation, in order to obtain the same promotion multiple times;

You will not interfere with or attempt to interrupt the proper operation of the Websites or the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Website or the Services through hacking, password or data mining, or any other means; and

You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.

We reserve the right, in our sole and absolute discretion, to deny you access to the Websites or the Services, or any portion of the Websites or the Services, without notice.

5.INTELLECTUAL PROPERTY

The Websites, and the Services contain material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of us (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on all copies of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.

If you violate any part of this Agreement, your permission to access and/or use the Content, the Websites and the Services automatically terminates, and you must immediately destroy all copies of the Content.

Our trademarks, service marks, and logos (“Our Trademarks”) that are used and displayed on the Websites, Services and Products are registered and unregistered trademarks or service marks. Other company, product, and service names located on the Websites, Services and Products may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Our Trademarks, the “Trademarks”). Nothing on the Websites, Services and Products should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless we provide advance written approval authorizing the establishment of such a link. All goodwill generated from the use of Our Trademarks inures to our benefit.

Elements of the Websites and the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.

6.ACCOUNT CREDENTIALS

Some of our Websites, may give you the option to create a user account to facilitate purchases through the Website. If you choose to create a user account, you will have to provide your email address (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). Please note that you may choose to make purchases without creating an account. When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one user. You are responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. You represent and warrant that the information you provide to us during the account creation and at all other times will be true, accurate, current, and complete.

7.USER GENERATED CONTENT

From time to time, we may allow you to post reviews, comments, photos, or similar materials on the Websites (collectively, the “User Generated Content”). We cannot and do not review it all -- we are merely acting as a passive conduit for distribution of the User Generated Content to other users of our Websites. That said, we may remove User Generated Content that violates the terms of this Agreement, or that is offensive or otherwise unacceptable to us in our sole discretion.

You expressly acknowledge and agree that once you submit User Generated Content through any of the Websites, it will be accessible by other users of the Websites, and that there is no confidentiality or privacy with respect to such User Generated Content, including, without limitation, any personal information that you may make available. YOU ARE ENTIRELY RESPONSIBLE FOR ALL USER GENERATED CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE WEBSITES.

You retain all copyrights and other intellectual property rights in and to the User Generated Content. You do, however, hereby grant us a non-exclusive, royalty-free, sublicensable, transferable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit your User Generated Content as reasonably necessary to provide the Websites and the Services.

If you submit User Generated Content to us, each such submission constitutes a representation and warranty to us that such User Generated Content is your original creation (or that you otherwise have the right to provide the User Generated Content), that you have the rights necessary to grant the license to the User Generated Content under the prior paragraph, and that it and its use by us and our content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates the terms of this Agreement.

8.FEEDBACK

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Website and our services (“Feedback”). Although we encourage you to e-mail us, you should not e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.

9.NO WARRANTIES; LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS AND CONDITIONS OF SALE, THE WEBSITES, THE SERVICES, THE PRODUCTS AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER WE NOR ANY OF OUR SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND WE HEREBY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITES, THE SERVICES AND/OR THE PRODUCTS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITES, THE SERVICES AND/OR THE PRODUCTS SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100) EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS AND CONDITIONS OF SALE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.

NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

THE WEBSITES AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE WEBSITES AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITES AND THE SERVICES AND/OR ADD OR REMOVE CONTENT AT ANY TIME WITHOUT NOTICE.

10.EXTERNAL SITES

The Websites and the Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the Website administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

11.INDEMNIFICATION

You will indemnify, defend, and hold us and our shareholders, members, officers, directors, employees, agents, and representatives (collectively, “Our Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any of Our Indemnitees in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) your misuse of the Website, the Services, or the Content; (iii) your violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; or (iv) your negligence, gross negligence, willful misconduct, fraud, misrepresentation or violation of law.

12.COMPLIANCE WITH APPLICABLE LAWS

The Websites and the Services are based in the United States. We make no claims concerning whether the Websites may be viewed or be appropriate for use outside of the United States. If you access the Websites from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

13.TERMINATION OF THE AGREEMENT

We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Websites and/or the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Websites and/or the Services at any time without prior notice or liability.

14.DIGITAL MILLENNIUM COPYRIGHT ACT

Reporting Claims of Copyright Infringement

We respect the intellectual property rights of others and attempt to comply with all relevant laws. We will review all claims of copyright infringement

received and remove any content deemed to have been posted or distributed in violation of any such laws. Our designated agent under the Digital

Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:

If you believe that your work has been copied on any of the Website in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

Counter-Notification Procedures

If you believe that material you posted on any of the Websites was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent (identified above).

Pursuant to the Act, the Counter-Notice must include substantially the following: (i) your physical or electronic signature; (ii) an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; (v) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.

The Act allows us to restore the removed content if the party filing the original notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the Act.

15.REFERRAL PROGRAMS

From time to time, we may offer various referral programs including but not limited to, Refer-a-Friend program (“Referral Programs”). Our Referral Programs will be subject to terms and conditions for the specific program. For more information on the terms and conditions of the specific program, please go to https://dreamfoambedding.com/pages/terms-and-conditions.

16.BINDING ARBITRATION

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES ARBITRATION OF DISPUTES AND LIMITS THE MANNER IN WHICH THE PARTIES CAN SEEK RELIEF.

16(A): Arbitration of Disputes.

In the event of any dispute, claim, or controversy between you and us of any kind relating to Products and purchases of our products (whether through the Websites or otherwise) (each, a “Dispute”), such Dispute will be finally and exclusively resolved by binding arbitration governed under the Federal Arbitration Act (“FAA”), subject to the Process described and defined below. For avoidance of doubt, any dispute concerning or relating to arbitrability shall be resolved exclusively by a court of law unless otherwise agreed to by the parties. NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH DISPUTE IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS DISPUTE IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. This provision shall apply, without limitation, to all Disputes that arose or were asserted before or after your acceptance of this Agreement and shall survive termination of this Agreement.

Neither you nor we will be entitled to:

Join, consolidate or combine Disputes by or against others in any arbitration with the exception of applicable arbitrator rules related to mass or multiple arbitration filings and our agreement below; or
Include in any arbitration any Disputes as a representative or member of a class.

16(B): Commencement of Disputes.

You and we agree to work together in an effort to resolve any Dispute between us. The party initiating a Dispute must send the other a written notice of the Dispute which is personally-signed (in the case of any digital signature, the digital signature shall comply with the requirements of the federal E-Sign Act) notice by Certified U.S. Mail. If we have a Dispute with you, we will send this notice to the most recent contact information we have for you. If you have a Dispute with us, you must send this notice to:

Brooklyn Bedding LLC

Attn: Legal Department

5301 W Bethany Home Road

Phoenix, AZ 85031

The written notice must include the disputing party’s name and residential address, phone number, the email address for your user account (as applicable), and a clear and detailed statement of the claim (including requested relief and the basis for relief). For a period of sixty (60) days from receipt of a completed notice (which can be extended by agreement of the parties), you and we agree to negotiate in good faith in an effort to resolve the Dispute. The party receiving the notice may request a telephone or video conference to aid in the resolution of the Dispute. If such a conference is requested, you and a company representative will personally attend the conference (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period. Completion of this mandatory dispute resolution process (“Process”) is a condition precedent to initiating a Dispute in arbitration. If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and any arbitration then underway shall be stayed. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. Nothing in this Section limits the right of a party to seek damages for non-compliance with this Process in arbitration. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed notice through the conclusion of this Process.

16(C): Arbiter of Disputes.

Any arbitration of a Dispute will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the National Arbitration and Mediation (“NAM”) pursuant to its then current rules, including, as applicable, NAM’s Comprehensive Dispute Resolution Rules and NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM Rules”), as modified by this Agreement. All applicable NAM Rules and procedures are available at the NAM website at www.namadr.com. If the NAM is unavailable or unwilling to administer the arbitration consistent with this arbitration agreement, the parties shall agree on an administrator that will do so. If the parties cannot agree, they shall petition a court of competent jurisdiction to appoint an administrator that will do so. Payment of arbitration fees will be governed by the NAM Rules and fee schedule. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs, including costs for expert and other witnesses, to the prevailing party.

16(D): Mass Arbitration.

You and we also agree that, if twenty-five (25) or more Disputes arises against a party regarding the same or substantially similar issues filed by or with the assistance of the same law firm, group of law firms, or organizations, our respective Dispute(s) will be arbitrated in a coordinated fashion such that arbitrator shall: (1) administer the arbitration demands together; (2) appoint one arbitrator for the coordinated demands; and (3) issue one set of case management, hearing and administrative fees due per side, one procedural calendar, and one hearing (if any) in a place to be determined by the arbitrator. To the extent the parties disagree on the application of the provisions of this paragraph, the disagreeing party shall advise the arbitrator, and the arbitrator shall stay the arbitrations pending a determination of the applicability of this section and process by a court. In such a proceeding, the prevailing party may recover its reasonable attorneys’ fees and costs in connection therewith.

16(E): Remedies.

Except as otherwise provided in this Agreement, the arbitrator shall be authorized to award all remedies available in an individual lawsuit under applicable substantive law, including, without limitation, compensatory, statutory and punitive damages (which shall be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive and other equitable relief, and attorneys’ fees and costs. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in Maricopa County, Arizona; if that forum is not available, then the arbitration shall take place in the United States county where you reside, provided a court in that county would have personal jurisdiction over all parties in the dispute. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. As set forth in Section 18 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests. Additionally, nothing herein shall limit your ability to seek public injunctive relief in arbitration or in a court of competent jurisdiction, as applicable.

16(F): Severance.

If any portion of this Section 16 is found to be void, unenforceable, or unlawful, in whole or in part, then the entire Section 16 shall be severed from this Agreement and any Dispute may only proceed in a court of law.

17.CLASS ACTION WAIVER

Except for mass arbitrations in accordance with Section 16(D) or under the arbitrator's mass filing rules, and unless otherwise agreed to by the parties, you and we agree that any proceeding or lawsuit, whether brought in arbitration or in a court of law, shall be limited to dispute(s) between us and you individually and not in a class, consolidated, or representative action. To the fullest extent permitted by law, (i) no arbitration or proceeding shall be joined with any other, except for coordinated arbitration of twenty-five (25) or more Disputes against a party regarding the same or substantially similar issues filed by or with the assistance of the same law firm, group of law firms, or organizations, as discussed in Section 16 above; (ii) there is no right or authority for any Dispute to be arbitrated, litigated, or resolved on a class action-basis or to utilize class action procedures without the express agreement of the parties; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons without the express agreement of the parties. If this class action and jury trial waiver is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of this Section, which shall remain in full force and effect.

18.EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights or confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts sitting in Maricopa County, Arizona for purposes of any such action by us.

19.CONTROLLING LAW; EXCLUSIVE FORUM

The Agreement and any action related thereto will be governed by the laws of the State of Arizona without regard to its conflict of laws provisions. The Parties hereby consent and agree that the exclusive jurisdiction for all suits, actions, or proceedings directly or indirectly arising out of or relating to the Websites, Services, Products, and this Agreement which are not otherwise arbitrable, shall be the federal court sitting in Maricopa County, Arizona. If the federal court in Maricopa County, Arizona is not available, then the exclusive jurisdiction for all suits, actions, or proceedings directly or indirectly arising out of or relating to the Websites, Services, Products, and this Agreement which are not otherwise arbitrable, shall be the state court in Maricopa County, Arizona. The Parties waive any and all objections to such courts, including but not limited to, objections based on personal jurisdiction, improper venue, or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to the Websites, Services, Products, and this Agreement.

20.CHANGE IN TERMS

We may from time to time change the terms that govern your use of our Websites, Services, and Products. We may change, move or delete portions of, or may add to, our Websites, Services, and Products from time to time. If we make material changes to the Terms of Use, we will notify you by email or through a message posted on the Websites. We reserve the right to determine the form and means of providing notifications of changes, provided that you may opt out of certain notifications as required under applicable laws or as described in these Terms of Use or our Privacy Policy. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Any changes to the Terms of Use will only be effective upon the stated effective date in the notice or if none is provided 30-days after we provide notice of the change, will apply equally to your claims and our claims. Your continued use of our Websites, Services, and Products following any such change constitutes your agreement and affirmative acceptance to follow and be bound by the modified Terms of Use. If you do not agree to, or cannot comply with, the Terms of Use as modified, you must stop using the Websites, Services, and Products.

21.MISCELLANEOUS

If the Agreement is terminated in accordance with the termination provision in Section 13 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Use of Personal Information,” “Intellectual Property,” “User Generated Content,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.