Terms & Conditions
ARBITRATION NOTICE: In these terms and conditions you will waive or give up certain legal rights and agree to certain limitations of liability and exclusions of damages. These terms and conditions have a dispute resolution provision that requires you to use arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. If you do not agree with these terms and conditions, do not use or interact with the website.
COPYRIGHT AND TRADEMARK NOTICES
The materials contained in this site are protected by copyright laws of the United States of America, including, but not limited to Title 17 of the United States Code, the Berne Convention and all treaties and conventions pertaining to intellectual property rights to which the United States is a signatory. Contents of this site may not be reproduced in any manner whatsoever either in whole or in part without written permission of the copyright owner, authorized agents or representatives. Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution, or exhibition of copyrighted materials. (Title 17, United States Code, Sections 501 & 506).
Visual Comfort & Co.’s logo is a registered trademark and may not be used without the express written permission of Visual Comfort & Co. All product designs and images contained herein are copyright Visual Comfort & Co. and/or their respective designers including, but not limited to, EFC Designs, Inc. and may not be used without their expressed permission.
The views and advertisements expressed in these submissions are those of Visual Comfort & Co. Visual Comfort & Co. makes no warranties nor any implied warranties for any materials, services or information from the content of this site and/or any site that may be linked with Visual Comfort & Co. Note: Such limitations or warranties may not apply in certain jurisdictions. Visual Comfort & Co. does not authorize any business that may occur outside the laws the United States or any foreign country.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE VISUAL COMFORT WEBSITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. VISUAL COMFORT AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE VISUAL COMFORT WEBSITE AT ANY TIME.
VISUAL COMFORT AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE VISUAL COMFORT WEBSITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND. VISUAL COMFORT AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
USE OF WEBSITE
We grant you a personal, limited, non-exclusive, nontransferable license to access and make personal use of the site and information contained on the Site. This license does not include any resale or commercial use of the site; any collection and commercial use of any photographs or other materials published on the site; any non-personal use of Our product names, listings, descriptions, or prices; any derivative use of the site; any downloading, copying, or other use of the site or the its materials for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms are reserved and retained by us and/or our suppliers and licensors. The licenses granted by us to you automatically terminate if you do not comply with these Terms. Visual Comfort & Co. is not responsible for the unauthorized download of information from this site or for the uses of any product or information provided by other parties. Without written consent of Visual Comfort & Co., the material in this web site may be downloaded for personal use only. Visual Comfort & Co. is not responsible for any errors and/or omissions in the Web Site materials, products and/or pricing.
These terms may be updated from time to time. You should check this website regularly for updates to these Terms. Each time you order, sign up for an account access or use any of the products or our website, you signify your acceptance and agreement, without limitation or qualification, to be bound by the then current Terms. Modifications take effect as soon as they are posted to this, delivered to you, or reasonably made available to you in writing by Visual Comfort. However, no amendment will retroactively modify the parties' agreed-to dispute resolution provisions of these Terms for then-pending disputes, unless the parties expressly agree otherwise in writing.
BINDING ARBITRATION / CLASS WAIVER
YOU AND WE EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND US OR ANY OF OUR CORPORATE PARENTS, SUBSIDIARIES, AND AFFILIATES, AND ALL OF THEIR RESPECTIVE CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, PROPRIETORS, PARTNERS, SHAREHOLDERS, SERVANTS, PRINCIPALS, AGENTS, PREDECESSORS, SUCCESSORS, ASSIGNS, ACCOUNTANTS, AND ATTORNEYS (COLLECTIVELY, THE “VISUAL COMFORT PARTIES”), ARISING OUT OF OR OTHERWISE RELATING IN ANY WAY TO THE VISUAL COMFORT PARTIES, THE WEBSITE, THE PRODUCTS (PURCHASED EITHER IN STORE OR ONLINE), OR ANY OTHER GOODS, SERVICES OR ADVERTISING BY VISUAL COMFORT OR ANY OF THE VISUAL COMFORT PARTIES, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THIS ARBITRATION AGREEMENT (COLLECTIVELY “DISPUTES”), THAT IS NOT RESOLVED BY AN INFORMAL DISPUTE RESOLUTION CONFERENCE (AS DEFINED AND DESCRIBED BELOW), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA'S CONSUMER ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY “RULES AND PROCEDURES”). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN. FOR PURPOSES OF THIS ARBITRATION AGREEMENT, “DISPUTE” WILL ALSO INCLUDE DISPUTES THAT AROSE OR INVOLVE FACTS OCCURRING BEFORE THE EXISTENCE OF THIS OR ANY PRIOR VERSIONS OF THE TERMS AND CONDITIONS AS WELL AS CLAIMS THAT MAY ARISE AFTER THE TERMINATION OF THESE TERMS AND CONDITIONS.
In the event a Dispute arises between us, we are committed to working with you to reach a reasonable resolution. You and we agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and we therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to us that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located 22400 Northwest Lake Drive, Houston, TX 77095. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. We will provide notice to your address on file. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
If you and we are unable to resolve a Dispute within 30 days after the applicable Informal Dispute Resolution Conference, either party may commence arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual.
Payment of arbitration costs will be governed by the AAA’s fee schedule. Each party agrees to pay its own attorneys’ fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys’ fees and expenses.
The arbitration shall be conducted in Houston, Texas, except that, in the event Houston, Texas is not within 100 miles of your residence, the arbitration may be conducted within 100 miles of your residence, unless the parties agree otherwise in writing. The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at https://www.adr.org.
Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (a) a violation of either party’s intellectual property rights in any manner; and/or (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; then you and the applicable Visual Comfort Party agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in Houston, Texas and both parties agree to submit to the personal jurisdiction of such courts in connection with such proceedings. In addition to the foregoing, either you or we may assert an individual action in small claims court for Disputes that are within the scope of such court’s jurisdiction in lieu of arbitration as long as such action remains in such court and advances only on an individual (non-class, non-representative) basis.
YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified otherwise herein. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
YOU AND WE AGREE THAT, EXCEPT AS SPECIFIED HEREIN, ALL DISPUTES SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. NO PARTY MAY BRING ANY CLAIM SUBJECT TO ARBITRATION PURSUANT TO THIS AGREEMENT AS A PRIVATE ATTORNEY GENERAL, IN A REPRESENTATIVE CAPACITY, OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. THE CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE JOINED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. NO ARBITRATION SHALL BE CONSOLIDATED OR JOINED WITH ANY OTHER ARBITRATION EXCEPT AS SPECIFIED HEREIN. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). If a court decides by means of a final decision, not subject to any further appeal or recourse, that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or request for relief, then such claim or request for relief (and only that claim or request for relief) shall be severed from the arbitration and may be brought exclusively in the state or federal courts located in Houston, Texas, subject to the parties’ respective rights to appeal the decision. All other claims or requests for relief shall be arbitrated. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties remaining in arbitration are finally resolved. The parties agree to submit to the personal jurisdiction of the federal and state courts located in Houston, Texas for purposes of resolving any claims or requests for relief severed from arbitration pursuant to this paragraph. This subsection does not prevent you or us from participating in a class-wide settlement of claims.
To increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are one hundred (100) or more individual arbitrations of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 arbitrations per batch (plus, to the extent there are less than 100 arbitrations left over after the batching described above, a final batch consisting of the remaining arbitrations); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that arbitrations are of a “substantially similar nature” if they arise out of or relate to the same event, act, omission, practice or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by us.
You and we agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of arbitrations, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
You can opt out of the provisions of this Arbitration agreement that require the arbitration of Disputes within 30 days of the date that you first agree to any version of these Terms that requires arbitration of disputes with Visual Comfort or any of the Visual Comfort Parties. To opt out, you must send your name, residence address, and email address together with a clear statement that you want to opt out of the requirement to arbitrate disputes with the applicable party to: Visual Comfort & Co., 22400 Northwest Lake Drive, Houston, TX 77095, ATTN: Arbitration Opt-Out. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us or any other Visual Comfort Parties.
Before you commence arbitration of a Dispute, you must provide us with a written Notice of Dispute that includes your name, residence address, username (if applicable) and email address associated with your User account (if applicable), a detailed description of the Dispute, and the relief you seek. Before we commence arbitration of a Dispute against you, we will provide a written Notice of Dispute to you with a detailed description of the Dispute and the relief we seek. Any Notice of Dispute you send to us should be mailed to Visual Comfort & Co., 22400 Northwest Lake Drive, Houston, TX 77095, ATTN: Dispute Notice. Notwithstanding anything to the contrary in this Agreement, if we make any future material modification to any provisions of this Agreement that govern the arbitration or resolution of Disputes, such changes will not apply to any Dispute between you and us for which either party had previously provided a written Notice of Dispute to the other in accordance with this paragraph. Further, if we make any future material changes to the provisions of this Agreement that govern the arbitration or resolution of Disputes, you may reject such changes by sending a written notice of your rejection decision to us at Visual Comfort & Co., 22400 Northwest Lake Drive, Houston, TX 77095, ATTN: Arbitration Opt-Out within 30 days of the effective date of such modifications. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and Conditions and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. We will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms and Conditions.
Except as provided above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
CHOICE OF LAW
You may not assign any rights or delegate any obligations under these terms and conditions without Visual Comfort’s prior written consent. Any assignment or delegation, or attempted assignment or delegation, in contravention of the foregoing shall be null and void. Visual Comfort may assign or delegate any of its rights or obligations hereunder. If any provision of these terms and conditions is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.
No waiver by Visual Comfort of any term or condition set out in these terms and conditions shall be deemed a further or continuing waiver of such term or condition, and any failure by Visual Comfort to assert a right or provision under these terms and conditions shall not constitute a waiver of such right or provision.
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