Terms and Conditions
Effective Date: September 1, 2020
These terms and conditions (these “Terms”) are a legal contract between you (as applicable “you” and “your”) and:
• for website visitors located in Canada and the United States of America (“USA”), RL Publishing Inc., 2300 Yonge Street, Suite 1400, Toronto, ON, Canada M4P 1E4, and
• for website visitors located in any other jurisdiction, Pernimus Limited, 9 Karpenisiou, Strovolos, 2021, Nicosia, Cyprus, (as applicable, “we,” “us,” “our” or “Pillowtalk”).
We operate pillowtalk-newsletter.com (“Pillowtalk”). Pillowtalk’s primary purpose is to provide you with interesting content in the form of data-driven articles (for example, based on survey results). We also may, from time to time: (i) collect email addresses from visitors who wish to (and consent to) subscribe to Pillowtalk’s newsletter and/or receive marketing emails from us and/or from affiliates or independent third parties; and (ii) include content that contains a marketing link for an affiliate’s or independent third-party’s website, for which we may or may not receive reimbursement (e.g., on a “pay per click” basis). Collectively, the aforementioned purposes, as well as any related activities (including but not limited to hosting the website, storing and securing email addresses, providing support services, etc.) shall be referred to as the “Services” and these Terms and Conditions shall be referred to as the “Terms.”
The headings used in these Terms are for convenience only and shall not be deemed to define or limit the content of any provision of these Terms. We may, in future, transfer our rights and obligations under these Terms to another organization but doing so would not affect your rights under these Terms. You may not transfer your rights or obligations under these Terms to another person or entity.
By accessing the Services (including visiting pillowtalk-newsletter.com), you are providing implied consent to these Terms in their entirety. We may, at some point, require you to give us express consent in order to continue accessing the Services. YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, AND THAT YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS. IF YOU DO NOT AGREE WITH ANY PORTION OF THE TERMS, STOP ACCESSING OR OTHERWISE USING THE SERVICES.
Below is a high-level summary of these Terms, which is provided for convenience only. Please read the Terms carefully in their entirety before using the Services and do not solely rely on the high-level summary provided below.
• Visitor Conduct: You must be at least 18 years old and the age of majority/legal consent in your home jurisdiction to use the Services. You may not use the Services if you ever have been convicted of a sexual offence, if you currently are charged with an offence of a sexual nature, or if you are required to register as a sex offender with any governmental entity or agency in any country. You must comply with our Code of Conduct at all times when using the Services.
• Liability: These Terms set out the legal terms and conditions that govern our relationship with you and your access to and use of the Services. Put simply, we will not be liable to you for any damages you incur in connection with your access to or use of the Services if we did not directly cause such damages or if such damages were not foreseeable to us and/or to you when these Terms were entered into by you. You are liable for any damage we incur which is directly attributable to your breach of these Terms or of applicable law. For greater clarification, the term “applicable law” shall include all applicable statutes, regulations and rules that apply to your acts or omissions in the jurisdiction(s) where your acts or omissions take place, For more information, please click here.
• Dispute Resolution: IF YOU ARE A RESIDENT OF THE UNITED STATES OF AMERICA OR OF CANADA, THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS. FOR MORE INFORMATION ON DISPUTE RESOLUTION, CLICK HERE.
- Your Account
Our Services are ONLY intended for persons 18 years or older and who also have attained the age of majority and legal consent in the jurisdiction of their residence. We will not knowingly permit anyone who does not meet these criteria to use our Services. By accessing and/or using the Services, you represent and warrant that you: (i) are at least 18 years old; (ii) have attained the age of majority and legal consent in the jurisdiction where you reside; (iii) are not prohibited by any law in your country of residence from accessing and/or using our Services; (iv) will comply with all applicable laws in your location in relation to your access to and use of the Services; (v) otherwise have the right, authority and capacity to accept these Terms; and (vi) will abide by all of these Terms and conditions set forth herein. You also represent and warrant that you will not allow any minor to access our Services, including taking all precautions and implementing all parental control protections on your computer or other electronic device used to access the Services, to prevent any minor from gaining access to the Services. Further, you hereby commit to inform us immediately should you become aware of a minor using the Services.
While we require all our visitors to be at least 18 years old, we are not responsible or liable for: (i) any misrepresentations by our visitors regarding their age; or (ii) the unauthorized use of the Services by a minor.
B. Your Obligations
You: (a) must not use our Services unless you have the full power and authority to enter into and perform these Terms; (b) will not use our Services to infringe or violate any legal right of ours or of any third party; (c) will comply with all applicable laws and regulations in using our Services and in engaging in all other activities arising from, relating to or connected with these Terms; and, (d) must not use our Services if you ever have been convicted of an offence of a sexual nature, currently are charged with an offence of a sexual nature, or if you are required to register as a sex offender with any governmental entity or agency in any country. We are not responsible to you for any damages you may suffer because of your breach of this clause.
In consideration for our allowing you to use our Services, you agree that we, our affiliates, and our third-party partners may place advertising on our Services.
C. Email Communications
Subject at all times to our obligations regarding email communications in your respective jurisdiction, you agree that: (i) we and other sites we operate (or our agents) may send you email communications that include messages about the Services and other services offered by us, our other sites and/or third parties; and (ii) any notice, agreements, and other communications we send to you electronically will be deemed to satisfy any legal requirements, including, without limitation, that such communications be in writing.
You may opt out of receiving email notifications from us by clicking the “Unsubscribe” link located at the bottom of any email we send you, which links shall remain effective for at least sixty (60) days.
Emails sent to you by us or one of our agents may contain links to other independent third-party websites or third-party applications (“Third-Party Sites”). See Section 3.B. for more information regarding Third-Party Sites.
We are not responsible for email communications sent to you by individuals or entities that are unrelated to us. See Section 5 (“Liability”) for further details.
D. Customer Service
Our customer service representatives are available to answer questions you may have about the Services. You may not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise behave inappropriately when communicating with our customer service representatives. To contact customer service, send an email to [email protected].
- Using the Services
A. Non-Commercial Use
Our Services are for personal use only and you may not use them in connection with any commercial purposes. Organizations, companies, and/or businesses may not use the Services for any purpose. Illegal and/or unauthorized uses of our Services (including, without limitation, copyright infringement) may be investigated, and appropriate legal action may be taken including, without limitation, civil, criminal, and injunctive redress.
B. Third-Party Sites and Content
Our Services may contain advertisements and promotions offered by third parties, and links to Third-Party Sites or resources. We also may provide non-commercial links or references to third parties within our content. Third-Party Sites are not under our control and we are not responsible for, and do not endorse or make any guarantees with regards to, their availability (or lack of availability), content, goods and/or services, or privacy policies (if any). You acknowledge that we will not be responsible for the content of, goods and/or services provided by, or privacy policies of, any Third-Party Sites or any messages you receive from, or communications you have with, the owners and/or operators of Third-Party Sites. You further acknowledge that we will not be responsible for any damage to your computer hardware, software, or other technology or equipment, including but not limited to damage from any security breach or from any programming errors, bugs, viruses, worms, Trojan horses or similar programs, other software or hardware failures, denial of service attacks, spamming or hacking, tampering, fraud, other error, omission, interruption, defect, delay in operation or transmission, computer line or network failure, or any other technical malfunction that results from your accessing a Third-Party Site. Your purchase and use of products or services offered by Third-Party Sites are at your own discretion and risk. If you choose to interact with the third parties made available through our Services, such party’s terms will govern their relationship with you. We are not responsible or liable for such third parties’ terms or actions.
C. Proprietary Rights
You acknowledge that all right, title and interest in the Services, including all worldwide intellectual property rights therein, and including without limitation all software (both source and object codes), scripts, graphics, form, text, publicity, content, information, and material made available to you via the Services, and any and all trademarks, services marks, logos, domains, copyrighted content, and patented content contained and embodied therein, including any enhancements, derivative works, know-how and modifications thereto, are solely owned by or licensed to Pillowtalk. The right to use the Services is licensed (not sold) to you, and you have no rights in, or to, the Services, content, information, or materials described above, other than the right to use them in accordance with these Terms. You acknowledge you have no right to have access to Pillowtalk in source-code form. You further acknowledge that you have no right to use any of the trademarks, service marks, logos, or domains that you may find in our Services, unless you have our express written permission. If you contact us with any suggestions or feedback regarding the Services, such feedback shall be deemed to be the sole property of Pillowtalk and you hereby irrevocably transfer and assign to Pillowtalk all intellectual property rights in such feedback and waive any and all moral rights that you may have with respect thereto. Except for that information which is in the public domain or for which you have been given express written permission by us, you agree not to sell, license, loan, rent, modify, distribute, copy, reproduce, transmit, publicly display, broadcast, publicly perform, publish, adapt, edit, create derivative works, reverse engineer, alter, enhance or in any way exploit any aspect of the Services, or its content or materials in any manner.
D. Infringement of a Third Party’s Intellectual Property Rights
We respect the intellectual property rights of others, and we ask you to do the same. If you believe that your work is the subject of copyright and/or trademark infringement and appears on Pillowtalk, please contact us using the following contact information:
RL Publishing Inc.
Attention: General Counsel
2300 Yonge Street, Suite 1400
Toronto, ON Canada M4P 1E4
Email: [email protected]
Please also note that, for copyright infringements under Section 512(f) of the U.S. Copyright Act (17 U.S.C. §512(f)), any person who knowingly materially misrepresents that material or activity is infringing shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
E. Submitting a DMCA Counter-Notification
If you provide copyright-protected material to us, and if we have to remove or disable access to it, we will notify you if such removal is pursuant to a valid take-down notice issued under the Digital Millennium Copyright Act (“DMCA”) that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to our agent (as designated in the notice) that includes all of the following information:
- Your physical or electronic signature;
- 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 to it was disabled;
- A statement from you, under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided us with notification of your allegedly infringing material or from an agent of such person.
F. Location of Use
If we become aware of any legal or other risk associated with the availability of the Services, whether in a particular location or more generally, we reserve the right to change, suspend, withdraw or disable access to the Services at any time, without notice, and we shall have no liability to you in respect of such action.
G. Protection and Security
You shall take all reasonable steps to ensure that no person other than yourself shall have access to the Services via your hardware. Upon learning of any unauthorized use of the Services, you will notify us promptly regarding the details of such occurrence(s), and take measures to prevent any reoccurrence thereof.
While we maintain a comprehensive information security program that is reasonably designed to protect the security, confidentiality, and integrity of personal information collected from or about visitors, you acknowledge and agree that internet-based services and internet and data transmissions carry inherent security risks, including, without limitation, risk of a data breach, sabotage or other security intrusion, and that a third party may make unlawful and harmful use of the Services. You acknowledge that we cannot guarantee that these services and any transmissions (e.g., emails) are or will be 100% secure. You acknowledge and agree that your choice to use the Services is, therefore, an assumption of risk on your part, and that Pillowtalk shall not be liable in any way for any damage whatsoever that may result from any such third-party behaviour. See Section 5 (“Liability”) for further information.
- Code of Conduct
In your use of our Services, you agree to act responsibly, in a manner that demonstrates good judgment and that complies with the required code below (the “Code of Conduct”). Without limitation, you contractually agree:
- not to violate any applicable statute, regulation or other law,
- not to infringe on the rights of any third party, including, without limitation, intellectual property rights, privacy rights, publicity rights, or contractual rights,
- not to use the information available through our Services for any unauthorized or unlawful purpose,
- not to interfere with, damage, disable, overburden, impair or compromise our Services, including, without limitation, through the use of viruses, worms, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, spamming, hacking, packet or IP spoofing, forged routing of electronic mail address information, or use of similar methods or technology, including methods that in any way reproduce or circumvent the navigational structure or presentation of Pillowtalk or its contents,
- not to use the Services if you ever have been convicted of an offence of a sexual nature, if you currently are charged with an offence of a sexual nature, or if you are required to register as a sex offender with any governmental entity or agency in any country,
- not to use our Services for any commercial purpose whatsoever, including, without limitation, advertising or marketing of any services or products,
- not to remove, deface, obscure or alter any copyright, trademark, attribution or other proprietary right notices contained in the Services,
- not to infringe on our intellectual property rights in any manner,
- not to alter, modify, adapt, sublicense, translate, reverse engineer, decrypt, decipher, decompile or otherwise disassemble, or copy or create derivative works based on, any portion of the Services or any software used on or for the Services, or attempt to derive or gain access to the object code, source code or other operational mechanisms or the underlying ideas, methodologies or algorithms of the Services (including without limitation accessing or using any part of the Services in order to: (i) copy or re-use ideas, features, functions or graphics; (ii) develop, offer or build a product or service that competes with any of Pillowtalk’s features or products, or the feature or product of any third party that is linked to within the Services; (iii) perform or publish benchmarks or competitive analyses; or, (iv) determine whether Pillowtalk features or products, or the features or products of any third party that is linked to within the Services, are within the scope of any patent),
- not to provide hyperlinks, URL links, graphic links or any other direct connection(s) to Pillowtalk, or any third party that is linked to within the Services, for profit or gain,
- not to use scripts, bots, web scrapers or other automated technology to access the Services and/or collect information from the Services,
- not to use the Services to store or transmit malicious code,
- not to attempt to gain unauthorized access to any product or related systems or networks used by the Services, including through direct or indirect penetration testing,
- not to copy, sell, resell, license, sublicense, distribute, make available, rent, lease, publish, assign, or otherwise commercially exploit or transfer your right to use the Services to any third party,
- not to access the Services using a “protected computer” as that term is defined in 18 U.S.C. §1030(e)(2) (briefly, this means a computer that belongs to or is used by a financial institution or the United States Government, or that is used in or affects interstate or foreign commerce or communication of the United States),
- not to use the Services in any way that would make the Services subject the Federal Acquisition Regulation, as set forth at 48 C.F.R. §§1.00-53.300 (briefly, this means you won’t access our Services on behalf of the USA’s federal government), or
- not to assist any third party in doing any of the foregoing.
We reserve the right to investigate and take appropriate legal action in our reasonable discretion against anyone who violates this or any other provision of the Terms, including, without limitation, contacting and disclosing information to the relevant authorities.
A. Our Liability
The following provision is not applicable to residents of Quebec, to whom the Quebec Consumer Protection Act applies.
We are not responsible for anything that: (i) was not foreseeable to you and/or us when these Terms were entered into by you; or (ii) is not directly caused by any breach of our obligations or otherwise directly caused by us.
To the maximum extent permitted by applicable law, in no event shall we, or any of our parent or subsidiary companies, affiliates, or any of their or our shareholders, officers, directors, employees, contractors, representatives, agents, successors or assigns be liable for (even if we or they have been advised of the possible existence of, or should have known about or foreseen) any of the following:
- ANY LOSSES OR DAMAGES, WHETHER ACTUAL, INCIDENTAL, DIRECT, INDIRECT, INTANGIBLE, GENERAL, CONSEQUENTIAL RELIANCE, COMPENSATORY, PUNITIVE, SPECIAL AND/OR EXEMPLARY, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, REPUTATIONAL HARM, DAMAGE TO YOUR COMPUTER HARDWARE, COMPUTER SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY, SERVICE INTERRUPTION, LOSS OR CORRUPTION OF DATA, PROCUREMENT OF SUBSTITUTE SERVICES, PECUNIARY LOSS AND/OR ANY OTHER LOSS OR DAMAGE ARISING OUT OF OR RELATING TO:
(a) YOUR USE, LOSS OF USE, OR INABILITY TO USE THE SERVICES (INCLUDING DELAYS, INTERRUPTIONS, OR PERFORMANCE OF THE SERVICES);
(b) MODIFICATION OF ANY PART OF, OR CONTENT IN, THE SERVICES;
(c) THE ACCURACY, TIMELINESS, PERFORMANCE, COMPLETENESS OR SUITABILITY OF ANY CONTENT OR THE SERVICES FOR ANY PARTICULAR PURPOSE;
(d) ANY DATA BREACH OR ANY OTHER SECURITY INTRUSION, OR ANY PROGRAMMING ERRORS, BUGS, VIRUSES, WORMS, TROJAN HORSES, OTHER MALICIOUS SOFTWARE OR HARMFUL COMPONENTS, DENIAL OF SERVICE ATTACKS, SPAMMING, HACKING, TAMPERING, INTERRUPTION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, OR ANY OTHER TECHNICAL OR NON-TECHNICAL MALFUNCTION OR DEFECT;
(e) YOUR CONDUCT OR THE CONDUCT OF ANY OTHER VISITOR IN CONNECTION WITH THE USE OF THE SERVICES;
(f) ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES, INCLUDING ANY THIRD PARTIES REFERENCED IN THE SERVICES;
(g) ANY ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING VIOLATION OF YOUR RIGHTS, OR ANY FRAUD BY ANY THIRD-PARTY;
(h) THESE TERMS;
(i) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY US, LAW ENFORCEMENT AUTHORITIES, OR OTHER PERSONS WHO OBTAIN SUBPOENAS, COURT ORDERS, SEARCH WARRANTS OR SIMILAR LEGAL DISCOVERY DOCUMENTS, WHERE SUCH INVESTIGATION IS CONDUCTED REGARDING YOUR USE OF THE SERVICES; or
(j) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS;
- THE ACTIONS OR INACTIONS OF ANY THIRD PARTIES THAT WE DO NOT CONTROL;
- ANY PROBLEM, TECHNICAL MALFUNCTION OR SECURITY ISSUE RELATED TO ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, MOBILE DEVICE EQUIPMENT, SOFTWARE, EMAIL OR PLAYERS, ANY TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE, OR ANY COMBINATION THEREOF, WHERE SUCH ISSUE HAS NOT BEEN CAUSED BY US OR BY ANY PARTY THAT WE CONTROL;
- ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION: NATURAL CATASTROPHE; FIRE; EPIDEMIC; PANDEMIC; QUARANTINE; GOVERNMENTAL ACT OR OMISSION; LAW OR REGULATION; WAR; TERRORISM (WHETHER ACTUAL OR THREATENED); RIOT OR CIVIL UNREST; FAILURE, DELAY OR DIMINISHMENT OF ELECTRICAL POWER OR OTHER UTILITY, INTERNET SERVICE, CO-LOCATION, DATA NETWORK OR SERVICE, WIRELESS CARRIER CONNECTIVITY OR TELECOMMUNICATION SERVICE; TRANSPORTATION STOPPAGE OR SLOWDOWN; STRIKE OR LABOUR ACTION; BLOCKADE; THIRD-PARTY APPLICATION; DENIAL OF SERVICE OR SIMILAR ATTACK; ACT OF CIVIL OR MILITARY AUTHORITIES; ACCIDENT; ENERGY CRISIS, OR ISSUE CAUSED BY ANY MEMBER’S DEVICE(S), EQUIPMENT OR SYSTEM(S) (“FORCE MAJEURE”);
- Business losses and/or losses to non-consumers (see Section 3.A for your obligation to use our Services for non-commercial use only); or
- Any losses or damages arising from or related to any and all email messages sent by any individual or entity which we do not own and/or operate (and which is not owned and/or operated by an agent of ours). (You acknowledge and agree that you shall not take any legal action against us [or against our parent and subsidiary companies, affiliates or any of their or our shareholders, officers, directors, employees, contractors, representatives, agents, successors or assigns] with respect to any such email message(s) that you receive, even if the contents of any message include references to us, Pillowtalk, or our Services, or if such message purports to have been sent on our behalf.)
If you are dissatisfied with the Services in any way but have incurred no losses or damages caused by us, your sole and exclusive remedy shall be discontinuation of your access to, or use of, the Services.
B. Limitation on Liability
To the maximum extent permitted by applicable law, under no circumstances will Pillowtalk’s liability to you for any and all losses or damages suffered in connection with these Terms or your use of the Services exceed the amount paid by you to use the Services during the twelve (12) months prior to the act or omission giving rise to liability, or, if you have not paid to use the Services, the amount of Twenty-Five Canadian Dollars (CAD $25) or its equivalent.
C. Your Liability
You are responsible for, and agree to indemnify and defend us against, and release and hold us harmless from, the claims, actions, proceedings, complaints, demands, losses, costs, damages, liabilities and expenses (including reasonable attorneys’ fees, court costs and costs related to arbitration) incurred by us or by any person engaged in the provision of the Services to the extent they arise out of or relate in any way to: (a) your access to, or use of, or inability to use the Services; (b) your infringement of the intellectual property rights of a person other than yourself; (c) your breach of these Terms; (d) your violation of any rights of a third party; (e) your negligent acts or omissions, or wilful misconduct or (f) your breach of any applicable law(s). You agree not to settle any such matter without our prior written consent. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us fully in asserting any available defenses. For greater clarification, the term “us” in this Section 5.C. shall refer to us and our parent, and subsidiary companies, affiliated entities, and our (and their), shareholders, officers, directors, employees, contractors, representatives, agents, successors and assigns.
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY OF OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, OUR LIABILITY WILL BE EXCLUDED OR LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
For greater clarification:
(1) Some U.S. states do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusions and limitations may not fully apply to you.
(2) For U.K. residents, nothing in this agreement shall exclude or limit our liability for death or personal injury caused by: (i) negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability to the extent that such liability cannot be excluded or limited by applicable law.
The waivers and limitations specified in this Section 5 will survive and apply regardless of the form of action, whether based in equity, contract, tort (including negligence), strict liability, product liability, or otherwise, even if any limited remedy in the Terms fails of its essential purpose.
- Dispute Resolution (USA and Canada Only)
Please read this carefully if you are a resident of the United States of America or Canada. It affects your rights.
For residents of the USA, all disputes, claims, controversies, causes of action (in tort, contract, by statute, regulation, ordinance or any other legal or equitable theory), including, without limitation disputes arising from or relating to these Terms (including this dispute resolution provision and the interpretation, breach, termination, enforceability and/or validity of any part of these Terms including this dispute resolution provision) or the relationship between you and Pillowtalk (including your use of the Services at any time) (collectively, “Disputes”) shall be resolved by: (i) a pre-arbitration dispute resolution process; or, failing that, (ii) binding arbitration pursuant to the Federal Arbitration Act (“FAA”).
For residents of Canada, all Disputes shall be resolved by: (i) a pre-arbitration dispute resolution process; or, failing that, binding arbitration.
The purpose of this Dispute Resolution section is to facilitate the prompt and efficient resolution of any disputes that may arise between you and Pillowtalk. “Disputes” is to be given the broadest possible meaning that will be enforced, except that “Disputes” excludes disputes relating to the enforcement or validity of our intellectual property rights. WE EACH AGREE THAT, EXCEPT AS OTHERWISE PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT, IN ACCORDANCE WITH THIS DISPUTE RESOLUTION PROVISION.
B. Pre-Arbitration Dispute Resolution Process
We hope we never have a Dispute but, if we do, you and we agree to try for sixty (60) days to resolve it informally. For greater clarification, if either party has any potential Dispute with the other, the complaining party must first give the other party an opportunity to resolve the Dispute prior to initiation of arbitration.
If you are the party who feels that a Dispute exists and that our customer service representatives haven’t been able to resolve it, you must commence this resolution process by mailing written notification to [email protected]. Your written notification must include: (1) your name; (2) your address; (3) a written description of the Dispute; and (4) a description of the specific relief you seek. You agree to try in good faith to resolve the Dispute within sixty (60) days of that request, following which either party may demand arbitration administered by JAMS (see Section 6.C., below).
C. Arbitration Process
For residents of the USA, if the parties engage in arbitration, it shall be performed by a single independent and impartial JAMS arbitrator (see www.jamsadr.com) under the FAA and any JAMS rules deemed to be applicable by the arbitrator. These Terms shall govern to the extent that they conflict with the JAMS rules. It is the intent of the parties that the FAA and JAMS rules shall pre-empt all state laws to the maximum extent permitted by law. If the FAA and JAMS rules are found not to apply to any issues that arise under this Dispute Resolution Section, then that issue shall be resolved under the laws of the State of New York. The arbitrator shall be either a retired judge or an attorney specifically licensed to practice law in the State of New York, and must have experience with and knowledge of information technology, and commercial websites. The arbitrator will be selected from the JAMS roster of consumer dispute arbitrators. If your claim does not exceed Ten Thousand USA Dollars (USD $10,000), then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing or the arbitrator deems that a hearing is necessary. Subject to the JAMS rules, the arbitrator shall have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
For residents of Canada, if the parties engage in arbitration, it shall be performed by a single independent and impartial JAMS arbitrator from JAMS Toronto (see https://www.jamsadr.com/toronto). These Terms shall govern to the extent that they conflict with the JAMS rules. It is the intent of the parties that the JAMS rules shall pre-empt all provincial laws to the maximum extent permitted by law. If the JAMS rules are found not to apply to any issues that arise under this section, then that issue shall be resolved under the laws of the Province of Ontario. The arbitrator will be selected from the JAMS Toronto roster of consumer dispute arbitrators, with preference given to retired judges or attorneys specifically licensed to practice law in the Province of Ontario, and must have experience with and knowledge of information technology, and commercial websites. If your claim does not exceed Ten Thousand Canadian Dollars (CAD $10,000), then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing or the arbitrator deems that a hearing is necessary. Subject to the JAMS rules, the arbitrator shall have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration replaces the right to go to court and, therefore, the parties waive any right that you or we might otherwise have had to a jury trial or the opportunity to litigate any claims in court before either a judge or jury. An arbitrator’s decision shall be final and binding on all parties. An arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. Notwithstanding the foregoing, we reserve the right to pursue the protection of our intellectual property rights and confidential information and to stop other illegal activities through immediate injunctive relief or other equitable relief at any time, and without first resorting to informal procedures or arbitration, through any courts of competent jurisdiction.
For residents of the USA, the exclusive venue for the arbitration shall be New York, New York. The parties may agree mutually on an alternate venue, in the event that New York City is an inconvenient forum. The parties will endeavor to minimize the need for long-distance travel through use of telephonic communications and submission of documents as permitted under applicable rules for expedited procedures. The official language of the arbitration shall be English.
For residents of Canada, the exclusive venue for arbitration shall be Toronto, Ontario. The parties may mutually agree on an alternate venue, in the event that Toronto is an inconvenient forum. The parties will endeavor to minimize the need for long-distance travel through use of telephonic communications and submission of documents as permitted under applicable rules for expedited procedures. The official language of the arbitration shall be English.
E. Small Claims Exception
Instead of mailing a written notification as described in Section 6.B., above, if you meet the applicable court’s requirements, you may sue us in small claims court in your county of residence or: (i) for residents of the USA, in Manhattan County, New York; or (ii) for residents of Canada, in the Municipality of Metropolitan Toronto, Ontario.
F. Class and Consolidated Claims Waiver
To the extent permitted under applicable law, it is agreed that neither party shall have the right to participate as a class representative or class member with respect to any Dispute subject to arbitration under these Terms, or any Dispute between the parties. Except as otherwise provided in this paragraph, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, collective action, consolidated action, or representative action) unless both you and we specifically agree to do so in writing following initiation of the arbitration.
If you choose to pursue your Dispute in court, where applicable law allows for such lawsuit despite the existence of this Dispute Resolution Section, it still is agreed that neither party shall have the right to participate as a class representative or class member with respect to any Dispute between the parties, except where the law of the applicable jurisdiction does not allow for a class action (consolidated claims) waiver.
G. Limitation of Liability
H. Notice of Claims, Timing of Disputes, and Nature of Award
Any Dispute must be filed within one (1) year of the date the Dispute arose or occurred; otherwise, it is permanently barred. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to any Dispute. Arbitration shall be commenced by filing a claim pursuant to the applicable JAMS Rules. The arbitration proceedings shall be completed, barring extraordinary circumstances or delays caused by the arbitrator’s schedule, within thirty (30) days of the completion of any discovery. During the discovery phase, the parties may grant reasonable continuance upon good cause shown. Any award shall be reasoned and shall be rendered within the time frame specified within the JAMS rules and, where possible, within thirty (30) days of closure of the arbitration proceedings.
I. Discovery and Hearing Procedures
All parties have the right, at their own expense, to be represented by an attorney or spokesperson of their own choosing. Discovery shall be completed expeditiously within one hundred twenty (120) days of the filing of the claim. The parties may grant reasonable extensions upon good cause shown. Each party shall produce relevant non-privileged documents requested by the other party. Discovery procedures available in court actions shall not apply. The arbitrator shall grant oral and/or written discovery to preserve evidence or upon a showing of need. All discovery disputes shall be submitted promptly to, and resolved promptly by, the arbitrator (subject to her/his schedule). The parties may elect to use any expedited procedures under the applicable JAMS rules.
J. Emergency and Provisional Remedies
Any party may seek a preliminary injunction or other provisional, injunctive, emergency or equitable relief (but not monetary relief) in a court of competent jurisdiction if, in its sole judgment, such relief is necessary to preserve the status quo or to prevent irreparable harm. The parties shall, despite seeking relief under this section, participate in good faith in the arbitration.
The parties will require the arbitrator to take reasonable steps to protect the parties’ confidential or proprietary information. The arbitration will be confidential unless the parties agree, mutually, that it need not remain confidential.
L. Payment of Arbitration Fees and Costs
We will consider requests to advance arbitration filing fees and arbitrator’s costs and expenses upon your written request, if such request is made prior to the commencement of the arbitration. You are responsible for all additional costs that you incur in the arbitration including, without limitation, costs associated with attorneys or expert witnesses. If the arbitration is decided in your favor, you will not be required to reimburse us for the fees and costs advanced by us, if any. If the arbitration is decided in our favor, you shall reimburse us for our arbitration fees and costs, to the extent permitted under the applicable JAMS rules.
M. Waiver of Jury Trial
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under the terms of this Dispute Resolution section. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state, provincial or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
N. Survival and Severability
The terms of this Dispute Resolution section shall survive the termination of your use of our Services. If any portion of this Dispute Resolution section is deemed to be unenforceable or unlawful for any reason: (1), the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Dispute Resolution section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Dispute Resolution section, and (3) to the extent that any claims, where allowed by applicable law, proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction rather than in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
A. Governing Law
These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
If you are a resident of the USA, except as otherwise provided in this section or as otherwise required by law, these Terms involve transactions between the parties in interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq., of the United States of America. Judgment upon any interim or final award may be entered and confirmed in any court or tribunal of competent jurisdiction. The substantive law of the State of New York (excluding its conflicts of law provisions) shall apply to all disputes and these Terms. If there is a difference between the Federal Arbitration Act and New York law, the Federal Arbitration Act shall control. In any circumstances where the foregoing Terms permit the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York for such purpose.
If you are a resident of Canada (except Quebec), these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. You irrevocably attorn and submit to the exclusive jurisdiction of the Ontario courts situated in the Municipality of Metropolitan Toronto and waive any objection to the venue of any proceeding in such court or that such court provides an inappropriate forum.
If you are a resident of Quebec, these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein.
If you are a resident of Australia, these Terms will be governed by, interpreted and enforced in accordance with the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
Except as set out above, or otherwise required under applicable law: (i) these Terms shall be governed by and construed in accordance with English law; and (ii) you may bring legal proceedings in respect of these Terms, or our Services, in the relevant courts of the United Kingdom (“UK”) or, if you are a European Union (“EU”) resident outside the UK, in the courts of your member state of residence, in accordance with applicable law.
B. Availability of Services
The following provision is not applicable to residents of Quebec to whom the Quebec Consumer Protection Act applies.
We are unable to warrant that our Services will at all times be free from any interruptions or technical malfunctions of Pillowtalk, programming errors, bugs, viruses, worms, Trojan horses or similar programs, other software or hardware failures, denial of service attacks, spamming or hacking, or delay in operation or transmission that may affect to your use of the Services. However, we will make commercially reasonable efforts to prevent occurrence of any such incident.
C. No Waiver
No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof.
The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
E. Communication in English / Communication en anglais
The parties to these Terms hereby confirm their express wish that these Terms, as well as all other documents related to the Terms, including but not limited to all confirmations, notices, waivers, consents and other communications between the parties in connection with these Terms be in the English language only and declare themselves satisfied with this. Les parties aux présentes conditions confirment leur volonté expresse de voir la présente convention, de même que tous les documents qui s’y rattachent, incluant, mais non de façon limitative, tous les confirmations, avis, renonciations, consentements et autres communications entre les parties, rédigés en langue anglaise seulement et s’en déclarent satisfaites.
F. Export Controls
You agree to comply with applicable USA, EU and UN export and re-export laws, regulations and requirements. For example, the United States Department of Commerce prohibits export or diversion of software and certain content to specified countries and persons. You certify that you will not download, export or re-export any software or content from the Services, for any end use: (a) into (or to a national or resident of) any country to which the USA, the EU or the UN has embargoed goods (including without limitation the Crimea Region of Ukraine or any Group E country listed in SUPPLEMENT NO. 1 TO PART 740 – COUNTRY GROUPS); (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List; (c) to any company, entity or person listed as a party of concern found here https://2016.export.gov/ecr/eg_main_023148.asp; or (d) for any end-use related to the development, production or use of nuclear, chemical or biological weapons or missiles. By downloading or using any such software or content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not license or otherwise permit anyone in any such country or on any such list to receive software or content that is subject to export control.
G. No Warranty
The Services are provided to you on an “AS IS,” “WITH ALL FAULTS” and “AS AVAILABLE” basis. Subject to any applicable legislation prohibiting the following exclusions, we do not offer or provide any warranties or representations in relation to the quality or performance of the Services, nor do we guarantee that the Services will always be available or that access to them will be uninterrupted. We will not be liable to you if, for any reason, the Services do not perform as described or are unavailable at any time or for any period. We cannot and do not warrant that the Services will be free from defects and errors, or that any defects or errors will be corrected. You assume responsibility for the operation of the Services, and for use and results obtained from the Services. WE MAKE NO WARRANTIES OF ANY KIND RELATED TO THE SERVICES (INCLUDING ALL CONTENT CONTAINED THEREIN), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A GENERAL OR PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR HAVE LEGISLATION THAT IMPOSES CERTAIN STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, SO PARTS OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- Modifications to the Services and These Terms
A. Modifications to the Services
We may modify or vary any part of our Services and/or these Terms in order to make technical adjustments, including but not limited to modifications which: (i) address security threats; (ii) enable us to create and test a new feature; (iii) cancel an existing feature; (iv) update the functionality of an existing feature; or (v) comply with applicable law.
We are not obligated to inform you of every instance where we make a change to the Services. However, we may, from time to time, notify you of changes by, for example, inviting you to test a new feature or informing you that we are canceling a feature. If at any time, as a result of modifications or otherwise, you determine that you no longer want to use the Services, you can stop using them and, if applicable, unsubscribe from marketing emails.
B. Modifications to These Terms
We may modify or vary any part of these Terms, including but not limited to changes which: (i) do not adversely affect you; (ii) address security threats; (iii) comply with applicable law; (iv) provide clarity; or (v) comply with changes to the Services. In such circumstances, continued use of the Services will be deemed to mean that you have provided implied consent to the updated Terms in their entirety. We may, at some point, require you to give us express consent in order to continue accessing the Services.
- Contact Us (Queries, Complaints and Notices)
- California Users
A. California Consumer Notice
Under California Civil Code Section 1789.3, California users of the Services are entitled to the following consumer rights notice: The Services are provided by RL Publishing Inc. d/b/a Pillowtalk. If you have a question or complaint regarding the Services, please contact Customer Service at [email protected]. You may also contact us by writing to us at RL Publishing Inc., 2300 Yonge Street, Suite 1400, Toronto, Ontario Canada M4P 1E4, Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 928-1227.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- MODEL CANCELLATION FORM
To: Pernimus Limited
9 Karpenisiou, Strovolos, 2021, Nicosia, Cyprus
I hereby give notice that I cancel my contract for the supply of the following service,
Ordered on [*]/received on [*],
User Name: …………………………………………………………………………..,
Signature:…………………………………. (only if this form is submitted on paper),
[*] Fill in or delete as appropriate