Please read these Terms of Service (“Agreement”, “Terms of Service”) carefully before using https://pillow-Fight.com (“the Site”) operated by Pillow Fight, LLC® (“Pillow Fight®” “us”, “we”, or “our”). This Agreement sets forth the legally binding terms and conditions for your use of the Site at https://pillow-Fight.com
By accessing or using the Site in any manner, including, but not limited to, visiting or browsing the Site or contributing content or other materials to the Site, you agree to be bound by these Terms of Service. Capitalized terms are defined in this Agreement.
The Site and its original content, features and functionality are owned by Pillow Fight® and are protected by international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
We may terminate your access to the Site, without cause or notice, which may result in the forfeiture and destruction of all information associated with you. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
LINKS TO OTHER SITES
Pillow Fight® grants you a non-exclusive, non-transferable, limited license to use the Site in accordance with this Agreement.
LIMITATION OF LIABILITY
In no event shall Pillow Fight®, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for damages, direct or consequential, resulting from your use of the Site, and you agree to defend, indemnify and hold us harmless from any claims, losses, liability costs and expenses, including but not limited to attorney’s fees, arising from your violation of any third-party’s rights.
Your use of the Site is at your sole risk. The Site is provided on an “as is” and “as available” basis. The Site is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
Pillow Fight®, its subsidiaries, affiliates, and its licensors do not warrant that a) the Site will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Site is free of viruses or other harmful components; or d) the results of using the Site will meet your requirements.
This Agreement (and any further rules, polices, or guidelines incorporated by reference) shall be governed and construed in accordance with the laws of Colorado, United States, without giving effect to any principles of conflicts of law.
CHANGES TO THIS AGREEMENT
We reserve the right, at our sole discretion, to modify or replace these Terms of Service by posting the updated terms on the Site. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Service. Please review this Agreement periodically for changes.
If you do not agree to any of this Agreement or any changes to this Agreement, do not use, access or continue to access the Site or discontinue any use of the Site immediately.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Castle Rock, Colorado before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Pillow Fight’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
PURCHASE ORDER TERMS
This Purchase Order Terms govern all purchasing between Pillowfite LLC, dba. Pillow Fight LLC, (the “Buyer”) and any Pillowfite, LLC Supplier that has transacted business with Pillowfite, LLC via Purchase Order (the “Supplier”).
The Supplier owns or controls the right to manufacture, market, distribute, and sell, and wishes to supply to the Buyer, the products set forth in Buyer Purchase Order (the "Products").
From time to time, the parties may enter into various agreements under which the Buyer will purchase, and Supplier will furnish additional products, and the parties want to establish purchasing procedures and the terms governing these transactions. If no such agreement exists, these Purchase Order Terms will govern the purchase between Buyer and Supplier.
The parties therefore agree as follows:
1. PURCHASE AND SUPPLY.
The Buyer shall buy from the Supplier the Products listed on the Purchase Order.
2. PURCHASE ORDERS
- Creation and Content. From time to time, the Buyer shall provide written requests to the Supplier listing the goods it requires (each a "Purchase Order"). The Supplier is not required to supply Products until a specific Purchase Order is issued by the Buyer, and the Buyer is not obliged to buy Products from the Supplier until it submits a specific Purchase Order listing the Products it requires. The Purchase Order will contain, at a minimum: (i) product description; (ii) quantity; (iii) price; (iv) the Buyer's ship-to and bill-to addresses; and (v) requested delivery date.
- Cancellation and Amendment. The Buyer may cancel or amend, in whole or in part, any Purchase Order submitted to the Supplier by providing 10 days' notice to the Supplier of that cancellation or amendment.
- Types of Orders. The Buyer may issue two types of Purchase Orders.
- Discrete Purchase Orders. A discrete Purchase Order is an order for a discrete amount of Product to be delivered on a specific delivery date. Discrete Purchase Orders are firm commitments by the Buyer but may be cancelled or rescheduled as provided in these Purchase Order Terms.
- Blanket Purchase Orders. A blanket Purchase Order is an order for an amount of Product to be determined in the future and to be delivered over a period of time. The Buyer uses blanket Purchase Orders as an administrative convenience to track orders and to give the Supplier a reference number for Blanket Purchase Orders are treated as forecasts only and are nonbinding on the Buyer.
- Unless otherwise specified in the Purchase Order, the Supplier shall ship the Products within 30 days of its receipt of a Purchase Order. Supplier is obligated to inform the Buyer if it cannot ship products within 30 days.
- The Purchase Order Controls. Unless the Buyer and the Supplier enter into an alternative agreement outlining purchasing terms, the Purchase Order Terms will govern all Purchase Orders between Buyer and Supplier, unless mutually agreed by Supplier and Buyer in writing.
3. INSPECTION AND ACCEPTANCE.
The Buyer shall inspect each delivery of Products received from the Supplier and notify the Supplier of any defects within 120 days after the Buyer receives the goods to Buyer warehouse. If the Buyer fails to notify the Supplier of any defects within this period, the shipment of Products will be deemed accepted. The Buyer shall allow the Supplier to inspect any Products alleged defective at the Buyer's business site. At the request of the Supplier, the Buyer shall ship to the Supplier, at the Supplier's cost, any Products that the Buyer believes are defective. The Supplier shall replace all defective Products rejected by the Buyer or, at the Supplier's option, reimburse the Buyer for the full purchase price of those Products, including any related shipping costs and taxes.
4. MINIMUM QUANTITIES.
- Minimum Purchase Order. Except for product sample orders, Buyer agrees that it will not issue Purchase Orders below the Supplier minimum order quantity (MOQ) level, if applicable or unless the Buyer and Supplier have agreed otherwise in writing.
- Failure to Supply. If, without excuse either by law or under these Purchase Order Terms, the Supplier fails to supply the Buyer with the Purchase Order quantities, and the Buyer is ready, willing, and able to buy the Products in the appropriate amounts, the Supplier shall credit the Buyer a sum equivalent to the price per unit, times the number of units that were failed to be supplied, as liquidated damages, within 30 days of failure to supply.
5. WARRANTY AND LIMITATION OF REMEDIES; DISCLAIMER.
- The Supplier warrants that the Products supplied shall be free from defects in material and manufacture and conform to specifications set forth in any Purchase Order at the time of shipment. If any Product fails to conform to these specifications or any defect in material or manufacture appears within 12months from the date of shipment, the Supplier's entire liability, and the Buyer's exclusive remedy, shall be, at the Buyer's option, either to repair or replace that defective Product within a reasonable time after written notification and return of the defective Product after the repair or replacement to the Buyer.
- THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING OR OF PERFORMANCE, CUSTOM OR USAGE OF TRADE, EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT.
6. DELIVERY OF PRODUCTS / SHIPPING.
The Supplier shall deliver the Products to a location designated by the Buyer (the "Delivery Point"). The Supplier assumes responsibility for the Products, and all risk of damage, loss, or delay of the Products, until the Products are delivered at the Delivery Point. Once the Products are at the Delivery Point, the Buyer assumes all responsibility for and risk of damage to those Products.
The Supplier shall supply the Products to the Buyer at the prices specified in the Purchase Order. The price of each Product includes packaging costs, all applicable taxes, customs duties, export duties, or similar tariffs or fees that the Supplier may be required to pay or collect in connection with the performance of its obligations under, or in furtherance of, these Purchase Order Terms. The Buyer will not be charged for insurance or storage of the Products. Buyer understands that Pricing may fluctuate from time to time and any pricing changes, either lower or higher, will be mutually agreed upon in writing by Buyer and Supplier.
8. PAYMENT TERMS.
The Supplier shall send invoices to the Buyer, and the Buyer shall remit payments to the Supplier, at the addresses listed on the Purchase Order. The Buyer shall remit those payments within 90 days of its receipt of the Supplier's invoice. Title in and to the Products shall pass from the Supplier to the Buyer on the Buyer's payment to the Supplier of all fees relating to those Products.
Purchase Order and all information contained on Purchase Order is confidential and shall be treated as confidential information by the Supplier.
10. DEFAULT AND REMEDIES.
If Buyer terminates the Purchase Order because of the Supplier’s default, Buyer shall have the right to exercise all remedies available at law or in equity. All rights and remedies are cumulative, and the election of one remedy shall not preclude another. Any termination will be without prejudice to accrued rights. Specifically, a termination due to default of delivery for the Products required on the Purchase Order will not affect or terminate the rights and obligations of the parties that have accrued under these Purchase Order Terms before or after that default.
Of the Buyer. The Supplier shall at all times indemnify the Buyer against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a "Loss") or any attorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of:
- any claim of breach of any express or implied warranty or negligence or strict liability, product liability, or similar theory in connection with the production, design, sale, or use of any of the Products purchased by the Buyer;
- any claims of patent or trademark infringement, or other violation of intellectual property rights, of third persons in connection with the production, design, sale, or use of any of the Products purchased by Buyer under the Purchase Order or the use of the trademarks, trade names, logos, or other intellectual property pertaining to those; and
- all other claims and liabilities of every kind or character arising out of, or related to, the production, design, sale, or use of the Products purchased by the Buyer under the Purchase Order, unless these claims or liabilities result solely from the Buyer's gross negligence or knowing violation of law.
- Of the Supplier. The Buyer shall at all times indemnify the Supplier against Loss or Litigation Expense caused by any breach of any of the representations made by the Buyer under this Purchase Order.
12. FORCE MAJEURE.
A party will not be considered in breach of or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under these Purchase Order Terms by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party's reasonable control (each a "Force Majeure Event"). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:
- notify the other party of the Force Majeure Event and its impact on performance under these Purchase Order Terms; and
- use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its
obligations under these Purchase Order Terms.
13. GOVERNING LAW.
- Choice of Law. The laws of the state of Colorado govern these Purchase Order Terms (without giving effect to its conflicts of law principles).
- Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Douglas County, Colorado.
- Attorneys' Fees. If either party employs attorneys to enforce any rights arising out of or relating to these Purchase Order Terms, the losing party shall reimburse the prevailing party for its reasonable attorneys' fees.
No amendment to these Purchase Order Terms will be effective unless it is in writing and signed by a party or its authorized representative.
15. EFFECTIVENESS AND NECESSARY ACTS; FURTHER ASSURANCES.
These Purchase Order Terms are effective upon Supplier receipt and acceptance of Buyer Purchase Order. Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions these Purchase Order Terms contemplate or to evidence or carry out the intent and purposes of these Purchase Order Terms.