SNOO Rental Program Terms and Conditions
You acknowledge that you have read and understood these Terms and Conditions and HBI Agreements and agree to be bound by them. If you do not accept these Terms and Conditions, including the HBI Agreements incorporated herein, then you may not use the Product.
THESE TERMS AND CONDITIONS INCLUDE AN ARBITRATION CLAUSE AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT.
- Rental Process and Payment.
(a) Your Rental. Your rental will include (i) 1 SNOO Smart Sleeper; (ii) 1 SNOO mattress and mattress cover; (iii) 1 fitted sheet; (iv) SNOO Sack and (v) 1 set of the following SNOO accessories: 4 SNOO legs, a power cord and adapter, and a power cable holder (collectively, the “Accessories”). SNOO Smart Sleeper and the Accessories shall be new or reconditioned. SNOO Sack, SNOO mattress, mattress cover and fitted sheet shall be new and unused.
(b) Sign Up. To sign up for the SNOO Rental Program you must be 18 years of age and reside in one of the 50 United States or the District of Columbia. HBI is unable to ship outside those areas. You must enter the Rental Portal through the “RENT NOW” link on HBI’s website (located at www.happiestbaby.com/snoo-rental) and provide all requested information, including a valid credit or payment card that will remain on file and remain valid through the Term (as defined below) of this Agreement. By providing your credit or payment card information, you agree that HBI is authorized to immediately charge your card (i) a security deposit (the “Security Deposit”); (ii) a reconditioning fee (the “Reconditioning Fee”); and (iii) the first month’s rent (plus all applicable taxes) in the amounts specified in the Rental Portal. The Product cannot be shipped until such charges have been approved by your credit or payment card issuer.
(c) Rental Order Processing. We may refuse to fulfill any rental order prior to delivery. Your rental order may be refused due to, among other things, system or typographical errors, product availability, fairness among customers where supplies are limited or problems identified by our credit or fraud departments. We may require additional verification or information before accepting an order. We will contact you if your order is rejected or if additional information is required to accept your order. If your order is rejected after we have processed your payment but prior to delivery, we will initiate the refund of your payment within one business day of rejection in the same manner it was made.
(d) Minimum Rental Period; Monthly Billing. You are agreeing to rent the Product for at least two (2) months. Your rental shall begin on the day on which the Product is delivered by HBI’s specified carrier to your address (the “Delivery Date”). You will be billed monthly. Your first billing period (the “Billing Period”) shall begin on the Delivery Date and end at the end of the previous calendar day of the following month. Subsequent Billing Periods shall commence on the same calendar day of the month as your initial Billing Period. For example, if the carrier delivers your rented SNOO Smart Sleeper on February 18 for delivery to you, your initial Billing Period will start on February 18 and end on March 17. The following Billing Period will start on March 18 and end on April 17. The following exception shall apply: initial Billing Periods which commence on the last day of any given month will always end on the day before the last day of the subsequent month. For example, if the Delivery Date is February 28, your initial Billing Period will end on March 30 and the second Billing Period will run from March 31 through and including April 29.
(e) Recurring Billing. The monthly rental fee (the “Rental Fee”) will be specified in the Rental Portal. The Rental Fee for the first Billing Period will be charged when you initiate your rental through the Rental Portal. The Rental Fee for each subsequent Billing Period will be automatically charged in advance. The charges will typically occur on the calendar day corresponding to commencement of your Billing Period (the “Charge Date”), although some charges may be delayed for business, technical or legal reasons. By providing your credit or payment card information, you agree that HBI is authorized to charge your card the Rental Fee plus any applicable taxes on the Charge Date on a monthly recurring basis until you cancel. Sales and/or other taxes will be calculated based on your shipping address. To see your Charge Dates, log in to the Rental Portal and view your account details.
If you want to use a credit or payment card different from the one you used to sign up, or if there is a change in your card validity or expiration date, you must update your credit or payment card information by logging in to the Rental Portal and updating your account details. If your credit or payment card expires and you do not update your payment information or terminate your rental as provided herein, you authorize us to continue billing you and you will remain responsible for any uncollected amounts.
Your payment obligations under these Terms and Conditions are not subject to any dispute, setoff, counterclaim or claim which you may believe you may have against HBI for any reason.
(f) Your Personal and Payment Information. You agree to provide and maintain accurate, current, and complete information to us including your name, contact and payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, image, photo or likeness, or provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide. We may suspend or terminate, in appropriate circumstances and in our sole and absolute discretion, the accounts of users who violate this Agreement.
By providing any credit card or other payment card information to us, you represent that such payment information is correct, and belongs to you or you have the authority to use such credit or payment card. You further agree to provide an accurate e-mail address that is registered to you. You are responsible for promptly updating your information with any changes to keep your billing information current and to enable us to send you notices under this Agreement. You must promptly notify us if your credit or payment card is cancelled. Changes to such information can be made by contacting Customer Service at 1-855-424-6323 or email@example.com. You agree that your placement of an electronic order on HBI’s websites is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
(g) Password and Account Access. If you rented the Product through the Rental Portal, you have access and control over your account profile, including all of the information provided for that profile. You are responsible for maintaining the confidentiality of your log-in credentials and for all activities under your account that you can reasonably control. You may not share your password or other login information. Any use of your account by any person other than you or your authorized representative is grounds for termination of this Agreement. You agree to promptly notify us, by emailing firstname.lastname@example.org, of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or our services. You agree not to use the account, username or password of any other account holder at any time. We will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.
- Term and Termination.
(a) Term. Your rental will begin on the Delivery Date (the date the Product is delivered by HBI’s specified carrier to your address) and it will end on the date the Product is placed with HBI’s specified carrier for return to us or when otherwise terminated by either party (the “Term”) as provided in this Section 2.
(b) Termination by You. You may terminate this Agreement at any time by cancelling your rental of the Product as described in Section 3 below.
(c) Termination by HBI Prior to Shipping. HBI may terminate this Agreement at any time and for any reason prior to the day on which the Product is shipped by HBI’s specified carrier at HBI’s warehouse for delivery to you (the “Ship Date”) by refusing to fulfill any rental order. If your rental order is rejected after we have processed your payment but prior to delivery, we will initiate the refund of your payment within one business day of rejection.
(d) Termination by HBI After Shipping. HBI may terminate this Agreement after the Ship Date for any reason upon thirty (30) days’ advance written notice to you. HBI may also terminate this Agreement after the Ship Date in the event of your default, as described in Section 11 below. Upon HBI’s termination, HBI reserves the right to electronically disable the Product and disconnect it from the SNOO mobile application.
(a) Cancellation Before We Ship the Product to You. You may cancel this Agreement at any time prior to one business day before the Ship Date. If you cancel prior to the Ship Date, we will initiate the refund of your payment within one business day from rejection in the same manner it was made.
(b) Cancellation After We Ship the Product to You. You may cancel this Agreement at any time after the Ship Date by logging on to your account, following the cancellation procedures provided there and having the Product placed with HBI’s specified carrier. To cancel your rental after the Product was shipped to you, you agree to return the Product to us consistent with our instructions and using the shipping label that you will receive from us when you initiate the cancellation, as described in Section 9. Your cancellation will become effective on the date on which HBI’s specified carrier picks up the Product from you.
- Reconditioning Fee and Security Deposit. When you sign up for the SNOO Rental Program, the Reconditioning Fee and the Security Deposit, each in the amount specified in the Rental Portal, will be charged to your credit or payment card in addition to the initial Rental Fee plus applicable taxes. The Reconditioning Fee is a one-time nonrefundable fee that covers our cost of cleaning and refurbishing the Product. The Security Deposit will be refunded to you upon return of the Product, less any charges resulting from your failure to comply with the provisions of these Terms and Conditions. You shall remain liable for any amounts owed in excess of the Security Deposit, including amounts for damage to the Product (the “Damage Fee”) or the replacement cost (the “Replacement Cost”) as specified in Section 10. You may not apply the Security Deposit to the rental amounts owed under these Terms and Conditions. Refund of the Security Deposit, less any charges resulting from your failure to comply with the provisions of these Terms and Conditions, will be credited to your credit or payment card within thirty (30) days after our receipt and satisfactory inspection of the Product.
- Invalid Credit or Payment Card and Late Payments. In the event any charges to your credit or payment card are declined, you must immediately provide a valid credit or payment card using the Rental Portal. If you fail to provide a valid credit or payment card within two (2) days, the Security Deposit will be forfeited, and you shall be in default of the Terms and Conditions with the resulting effects stated in Section 11. Each payment not received by HBI within ten (10) business days after the due date shall bear interest thereon at the rate of two percent (2%) over the highest prime rate from time to time being charged by JP Morgan Chase Bank, computed from the original due date, until paid, provided, however, that if said rate be in excess of the maximum permitted by law in the jurisdiction where such debt accrues, then the rate of such interest shall be the maximum permitted by law. This late payment charge shall be in addition to HBI’s other remedies in the event of default. Acceptance of any payment by HBI after its due date shall not constitute a waiver by HBI of any of HBI’s rights hereunder.
- Fraud Protection. We may screen received rental orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process any rental order due to suspected fraud or unauthorized or illegal activity. If we suspect any such activity, we may reject your order or we may contact you at the phone number or email address you provided to us. We reserve the right to refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We also reserve the right to immediately electronically disable the Product and disconnect it from the SNOO mobile application if we suspect any such activity.
- Shipping, Condition of Product and Inspection. SNOO Smart Sleeper and Accessories shall be new or reconditioned. SNOO Sack, SNOO mattress, mattress cover and fitted sheet shall be new and unused. All items will be delivered in good condition. HBI will take commercially reasonable efforts to ship the Products within the timeframe we provided to you at the time of rental. The tracking information provided with your order confirmation will show approximate delivery timeframes. Note that any timeframes we provide are good faith estimates and may be subject to change. Product availability may be limited in some cases and not available for immediate shipment. We will take commercially reasonable steps to inform you in writing of any shipping delays that extend beyond the timeframe we provided at the time of purchase. We are not liable for any shipping delays due to factors outside of our reasonable control, including, but not limited to, bad weather, natural disasters, strikes, protests, government disruptions, etc. You shall inspect the Product upon delivery and advise HBI within hthree (3) business days if the Product is not in good condition by emailing HBI’s customer care representative (“Customer Care”) at email@example.com, after which time the Product shall be deemed to have been received in good condition.
Use of Product. You will use the Product only for personal use and in accordance with its intended use and pursuant to the written instructions provided by HBI, which may be provided at the time of rental or on its website at com/snoo-user-manual(the “User Guide”). IF YOUR BABY HAS BEEN DIAGNOSED WITH A NON-TRIVIAL MEDICAL CONDITION, CONSULT WITH YOUR HEALTH CARE PROVIDER PRIOR TO USING THE PRODUCT. YOU WILL NOT USE THE PRODUCT IF YOUR BABY CAN PUSH UP ON HANDS AND KNEES OR HAS REACHED 6 MONTHS OF AGE, WHICHEVER COMES FIRST. YOU WILL NOT USE THE PRODUCT IF YOUR BABY WEIGHS MORE THAN 25 POUNDS. You will maintain the Product in accordance with all instructions received from HBI from time to time and as usual care for the Product. At the end of the Term, you will return the Product to HBI in the same condition as received, excepting normal wear and tear. You must retain HBI’s warning and identification labels on the Product. You shall not attach the Product to any real property.
- Return of Product upon Cancellation.
(a) Cancellation During the First Billing Period. If you cancel your rental during the first Billing Period, your payment card will be charged the Rental Fee for the second Billing Period on the date the Product is placed with HBI’s specified carrier for return to us.
(b) Product Return. To return the Product upon cancellation, you must log in to your account, click on “cancel your rental” and fill out all requested information to obtain a shipping label to return the Product. The return shipping fee will be specified in the Rental Portal and charged to the credit or payment card linked to your account. You shall return the Product to HBI in its original condition, excepting normal wear and tear, using HBI’s specified carrier and the shipping label you received from us (affixed to the top surface of your package). To better protect the Product during shipping, please return the Product in its original packaging, including all packaging inserts, or return it in substitute packaging that you obtained from HBI at your added expense of $48.25 plus applicable tax. It shall be your responsibility to securely pack the Product, including all Accessories (except that you may keep the mattress, mattress cover, fitted sheet and SNOO Sack). You must use adequate packaging materials and you shall be liable for any damage the Product may incur, related to inadequate packaging, as the Product gets transported from you to us. For packaging instructions, visit https://vimeo.com/301710495/cef0665194. Your cancellation will not become effective until the Product is placed with HBI’s specified carrier for delivery to us.
Damage, Destruction and Loss. You shall bear all risk of destruction, loss or damage to the Product from the time it is delivered to the shipping address you provided in the Rental Portal to the time that it is received by HBI. In the event of damage to the Product or Accessories from any cause, aside from normal wear and tear, you agree to pay to HBI the cost of repair as determined by HBI in its sole and absolute discretion (i.e., the Damage Fee) provided the Damage Fee for each item shall not be greater than the Replacement Cost (listed below) for each item, as applicable. If HBI determines, in its sole discretion, that the damaged Product or Accessories cannot be repaired, you agree to pay HBI the following cost of replacement, as well as applicable sales tax, for each such item: (i) each SNOO leg - twenty-five dollars ($25); (ii) power cord and adapter - twenty-five dollars ($25); (iii) power cable holder - fifteen dollars ($15); (iv) wood grain ribbon - fifty dollars ($50); (v) mesh fabric wall - ninety nine dollars ($99); (vi) Product platform - ninety nine dollars ($99); and (vii ) full retail price of the Product, if replacement of the entire SNOO Smart Sleeper is necessary. Notwithstanding the previous sentence, the Replacement Cost and/or Damage Fee will not exceed the full retail price for the Product at the time of your return of the Product. You agree that the amount of the Damage Fee or Replacement Cost (depending on the condition of the Product or Accessories as determined by HBI in its sole and absolute discretion) in excess of the Security Deposit will be charged to your credit or payment card. In the event you fail to return the Product or Accessories at the end of the Term, you agree that the Replacement Cost owed in excess of the Security Deposit will be charged to your credit or payment card in addition to all other amounts due under this Agreement.
Default. In the event of your default by failing to comply with these Terms and Conditions and your failure to cure said default within five (5) business days of your receipt of our written notice of the default, HBI shall have the right to terminate your rights under these Terms and Conditions and, in HBI’s sole discretion, either repossess the Product, wherever located, with or without legal process or charge the Replacement Cost to your credit or payment card. In addition to pursuing all other remedies, HBI may electronically disable the Product and disconnect it from the SNOO mobile application. Further, HBI may charge your credit or payment card for any amounts that are due and payable or become due and payable. You agree to pay all of HBI’s costs of enforcing the provisions of these Terms and Conditions, including reasonable attorneys’ fees, in addition to all other amounts and damages for which you are responsible under these Terms and Conditions. You hereby waive any and all rights you may have, and can legally waive, to oppose pre-seizure hearings following default. Your obligations to HBI under these Terms and Conditions shall survive any termination of this Agreement.
- Product Ownership. Full right, title and ownership of the Product will at all times remain vested with HBI throughout the Term of this Agreement. You expressly agree that you will do nothing inconsistent with HBI’s ownership of the Product, and that you gain no rights, title, or interest in or to any of HBI’s products or services or any goodwill associated therewith. Except as expressly set forth in this Agreement, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of HBI or any third party. Any and all goodwill arising from your use of any the Product shall inure solely to the benefit of HBI.
You do not have an option to purchase the Product at any time. You expressly agree that you are renting the Product FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY. You are prohibited from subleasing or lending the Product. You and HBI understand that this transaction is a lease and not a conditional sale or financing agreement. You shall not grant a security interest of any kind in the Product to any other person. You shall keep the Product free and clear from all levies, attachments, liens, and encumbrances. In the event that any person other than HBI attempts to create or assert an interest in the Product, you shall give immediate notice to HBI and shall take such action as HBI may require.
- Limited Warranty Rights.
(a) Limited Warranty. This Limited Warranty gives you specific legal rights. You may also have other or additional legal rights under the laws of your state. The disclaimers, exclusions, and limitations of liability under this Limited Warranty will not apply to the extent prohibited by applicable law. For a full description of your legal rights you should refer to the laws of your applicable state. Only you have rights under this Limited Warranty. HBI warrants the Product against defects in materials and workmanship under normal use during the Term of this Agreement. HBI MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. If a Product is returned to HBI during the Term of this Agreement, as provided above, and HBI determines that the Product is defective, HBI will at its sole discretion (i) repair the Product or (ii) replace the Product or any defective components or parts with a new or refurbished Product, component or part.
(b) Scope and Limitation of Warranty. HBI’s warranty obligations are limited to the repair or replacement of defective Products or parts thereof during the Term of this Agreement, as described above. This warranty does not cover customer training and education, installation, set-up or adjustment, signal or reception problems, any reimbursement for loss of use or shipping cost.
(c) Exclusions from Limited Warranty. This Limited Warranty does not cover damage to the Product (i) due to acts of God, other forces beyond HBI’s reasonable control, such as internet or power outages, power surges, fires, earthquakes, floods or other events of “force majeure,” accident, misuse, abuse, negligence, commercial use or modification of, or to any part of the Product; or (ii) caused by any third party product, service or system, use of the Product for purposes other than for which the Product was designed or intended, use in improper temperature, humidity or other environmental conditions, or use of the Product in violation of the User Guide.
In addition to the above, this warranty also excludes (i) defects due to normal wear and tear or aging; (ii) damage due to disassembly of the Product, improper repair, operation, modification or maintenance or connections to improper voltage supply or, to the extent allowed by law, attempted repair by anyone other than a facility authorized by HBI to service the Product; (iii) use of the Product for purposes other than for which the Product was designed or intended; (iv) misuse of Product contrary to instructions provided by HBI in the User Guide; and (v) specific wireless signal or reception problems, internet connectivity issues of your router, or your smartphone or any other technical incompatibilities beyond our control.
(d) The Product is Not a Medical Device. The Product is not a medical device. HBI makes no warranty or representation that the use of the Product (with or without any third-party product or service) prevents, cures or diagnoses any disease, screens for any medical condition or constitutes medical treatment. You understand and acknowledge that the Product or its associated services will not dispatch emergency authorities in the event of an emergency. Furthermore, Customer Care cannot be considered a medical resource. In case of an emergency or a medical concern, it is your responsibility to seek medical assistance.
(e) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED BY LAW, THE WARRANTY AND THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. HBI DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER ARISING BY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. TAMPERING WITH AND/OR OPENING UP THE PRODUCT VOIDS THE PRODUCT’S WARRANTY.
(f) Limitation of Damages. IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS AND EXCLUSIONS, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HBI OR ITS EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY, TORT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER LOSSES THAT ARISE DIRECTLY OR INDIRECTLY OUT OF YOUR USE OF THE PRODUCT. TO THE FULLEST EXTENT PERMITTED BY LAW, HBI’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT PAID FOR YOUR USE OF THE PRODUCT THAT CAUSED SUCH DAMAGE. CERTAIN STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, HBI IS NOT LIABLE FOR ANY DAMAGES ARISING FROM OR RELATING TO THE PRODUCT UNLESS SUCH DAMAGES ARE THE RESULT OF HBI’S NEGLIGENT, RECKLESS OR INTENTIONAL ACTS OR OMISSIONS; AND TO THE FULLEST EXTENT PERMITTED BY LAW, HBI IS NOT LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
- Warranty Service Process. To obtain warranty service, you must contact Customer Care and provide them with your order number and obtain a Return Merchandise Authorization (“RMA”) number. HBI may attempt to troubleshoot a warranty-related problem or ask for additional information prior to issuing a RMA number. If a RMA number is issued, it will be valid for ten (10) business days from issuance. Once a RMA number is issued, HBI will provide you with a shipping label for the return of the Product. You shall return the Product using HBI’s specified carrier and the shipping label affixed to the top surface of the package. To better protect the Product during shipping, please ship the Product in its original packaging using all packaging inserts, or return it in substitute packaging that you obtained from HBI at your added expense of $48.25 plus applicable tax. For packaging instructions, visit https://vimeo.com/301710495/cef0665194. It shall be your responsibility to securely pack the Product using adequate packaging materials and you shall be liable for any damage the Product may incur, related to inadequate packaging, as it gets transported from you to us. If you fail to return the Product within the 10 business days this Agreement continues as-is. If a Product is returned to HBI during the Term of this Agreement and HBI determines that the Product is defective, HBI will at its sole discretion (i) repair the Product or (ii) replace the Product or any defective components or parts with a new or refurbished Product, component or parts. If a Product is returned to HBI during the Term of this Agreement and HBI determines in its sole discretion that (a) the Product is not defective or (b) the warranty does not apply for any of the reasons specified in Section 13(c), HBI shall have the right to either return the original or a different unit back you or to terminate this Agreement in its sole and absolute discretion. HBI reserves the right to change the method by which it may provide warranty service to you, and the eligibility of the Product to receive a particular method of service.
If you wish to receive a replacement Product for your use during the warranty service process, you may contact Customer Care and provide a security deposit (the “Second Security Deposit”) prior to shipment of the replacement Product. The amount of the Second Security Deposit will be determined at the time of your request. The Second Security Deposit will be refunded within 10 business days of our receipt of the original Product. If you do not wish to provide the Second Security Deposit, we will ship the replacement Product within 10 business days from the day on which we receive the original Product from you.
- Dispute Resolution, Arbitration Agreement and Waiver.
(a) Dispute Resolution. The dispute resolution process consists of: (1) an informal negotiation with HBI’s customer service team; and, if the dispute remains unresolved, (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this section). The Consumer Arbitration Rules provide, among other things:
- Claims can be filed with AAA online at www.adr.org;
- Arbitrators must be neutral and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
(b) Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and HBI each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. HBI will contact you at the email address you have provided to us; you can contact HBI’s customer service team by emailing firstname.lastname@example.org. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
(c) Agreement to Arbitrate. You and HBI agree that any dispute, claim or controversy arising out of or relating to this Agreement, your relationship with HBI or your use of the Product or any HBI’s services (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and HBI agree that the arbitrator will decide that issue.
(d) Exceptions to Arbitration Agreement. You and HBI each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights and (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
(e) Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
(f) Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, HBI agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in Los Angeles County; (c) in any other location to which you and HBI both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
(g) Modification of AAA Rules - Attorney’s Fees and Costs. You and HBI agree that HBI will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, HBI agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA Rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
(h) Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
(i) Jury Trial Waiver. You and HBI acknowledge and agree that by accepting the Terms and Conditions, we are each waiving the right to a trial by jury as to all arbitrable disputes.
(j) No Class Actions or Representative Proceedings. You and HBI acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all disputes between us. Further, unless you and HBI both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this Subsection is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
(k) Severability. Except as provided in Section 16(j), in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(l) Changes. Notwithstanding anything to the contrary in this Agreement, if HBI changes this Section 16 (“Dispute Resolution, Arbitration Agreement and Waiver”) after the date you last accepted this Agreement (or accepted any subsequent changes to it), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date below. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and HBI in accordance with the provisions of this Dispute Resolution, Arbitration Agreement and Waiver section as of the date you last accepted this Agreement (or accepted any subsequent changes to it).
(m) Survival. Except as provided in Section 16(k), this Section 16 will survive any termination of this Agreement and will continue to apply even if you stop using the Product or HBI’s Services.
Indemnity. Subject to these Terms and Conditions, you will defend, indemnify and hold harmless HBI its subsidiaries and affiliates, and their respective directors, officers, agents, employees, licensors, and suppliers, from and against any claim, cause of action, liability, expense, loss or demand, including without limitation reasonable legal and accounting fees, to the extent arising out of (i) your material breach of these Terms and Conditions or the agreements made part of these Terms and Conditions by reference, (ii) your breach of any applicable laws, regulations or third party rights, or (iii) your gross negligence or willful misconduct.
Feedback. We welcome and encourage you to provide feedback, comments and suggestions about the Product (“Feedback”). You may submit Feedback by emailing us at email@example.com by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
(a) We may be required to change the terms of any products, goods or services that we offer and/or you rent or purchase. This includes without limitation changes to prices, taxes and delivery times. We will provide you with prior notice of any changes, by posting a notice on our website and/or sending an e-mail to you at the address you provided at the time of rental. We will not incur any obligation as a result of such change. You may cancel continued rental as described above. By continuing to accept products, goods and/or services after we have notified you of a change to any terms, you will be deemed to have accepted the change.
(b) If any provision of these Terms and Conditions is held to be invalid or unenforceable, the remaining provisions of these Terms and Conditions will remain in full force and effect.
(c) HBI’s failure to enforce any right or provision in these Terms and Conditions will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth herein, the exercise by either party of any of its remedies hereunder will be without prejudice to its other remedies under these Terms and Conditions or otherwise permitted under law.
(d) All notices under this Agreement will be provided via email and will be deemed given on the date transmitted to the email addresses as may be specified by written notice of either party. You bear the sole responsibility of ensuring that your e-mail address on file with us is accurate and current.
(e) You may not assign, delegate or transfer your rights or obligations under these Terms and Conditions. HBI may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder at its sole discretion and without notice to you.
(f) To the extent permitted by law, the laws of California, without regard to its conflict of laws rules, will govern these Terms and Conditions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 16 must be brought in state or federal court in Los Angeles, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Los Angeles, California.
(g) These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
(h) All obligations of the parties under this Agreement which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, shall survive such termination, cancellation, or expiration.
(i) HBI makes no representation or warranty that the Product is appropriate or available for use at locations outside of the 50 United States or the District of Columbia. You may not use the Product at a location outside of the United States.
For questions about the Product or this Agreement, please contact us at firstname.lastname@example.org.
Updated as of January 11, 2022