KELLY TOYS HOLDINGS, LLC
TERMS AND CONDITIONS
Kelly Toys Holdings, LLC (“Kelly Toys”) is pleased to share the Squishmallows® website located at www.squishmallows.com with you (the website, content, products and services hereinafter referred to as the “Kelly Toys Services”). Kelly Toys is a dynamic top toy company located in the United States, with a focus on developing and delivering high quality innovative products and brands that kids love! Kelly Toys owns Squishmallows® website and the Kelly Toys Services and through that site is providing consumers direct access to purchase its amazing, cuddly and versatile plush toys Squishmallows®! Since 2017, Kelly Toys has brought these loveable buddies to you!
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE KELLY TOYS SERVICES.
ANY DISPUTE BETWEEN YOU AND US MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION IN THESE TERMS AS IT AFFECTS YOUR RIGHTS UNDER THIS CONTRACT.
CONTRACT BETWEEN YOU AND US
This is a contract between you and Kelly Toys, a toy company located at 4811 South Alameda Street, Los Angeles, California 90058, USA. You must read and agree to these terms before using the Kelly Toys Services. If you do not agree, you may not use the Kelly Toys Services. These terms describe the limited basis on which the Kelly Toys Services are available and supersede any prior agreements or arrangements.
We may amend these terms. Any such amendments will be effective thirty (30) days following either our dispatch of a notice to you or our posting of the amendment on the Kelly Toys Services. If you do not agree to any change to these terms, you must discontinue using the Kelly Toys Services.
We may immediately terminate this contract with respect to you, including your access to the Kelly Toys Services, if you fail to comply with any provision of these terms.
USE OF KELLY TOYS SERVICES
Users of all ages are welcome to browse the Squishmallows Website under the terms set forth herein, however, you may only further use the Kelly Toys Services if you are 16 years of age or older. In order to purchase products through the Squishmallows Website, you may be asked to complete an order form and provide your name and contact information as well as submit a valid credit card number, billing address, related billing information, and delivery information in connection with your order. When you use the Kelly Toys Services to place an order you must (i) provide accurate and truthful information. By using the Kelly Toys Services, you represent and warrant that you have the right and are authorized to provide the information you provide when you place an order.
By using the Kelly Toys Services, you agree to transact electronically through the Squishmallows Website. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a keypad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third-party verification is necessary to validate your electronic signature, and the lack of such certification or third-party verification will not in any way affect the enforceability of your electronic signature.
As part of the services we offer through the Kelly Toys Services, Kelly Toys may communicate information and promotional opportunities to you of a marketing nature through e-mail. Each e- mail has an option at the end of the e-mail to unsubscribe to this type of communication.
ACCURACY OF INFORMATION
We attempt to ensure that information provided through the Kelly Toys Services is complete, accurate and current. Despite our efforts, information provided through the Kelly Toys Services may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness or accuracy of any information provided through the Kelly Toys Services. For example, products offered may become unavailable or may have different attributes than those listed. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
PRODUCTS, CONTENT AND SPECIFICATIONS
The prices of products and services described or depicted on the Kelly Toys Services are subject to change at any time without notice. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any product or service on the Kelly Toys Services at a particular time does not imply or warrant that the product or service will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international
laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through the Kelly Toys Services. By placing an order, you represent that the products ordered will be used only in a lawful manner and are being purchased for your own use and not for resale to third parties.
CORRECTION OF ERRORS AND INACCURACIES
We reserve the right to correct any errors, inaccuracies or omissions and to change or update information provided through the Kelly Toys Services at any time without prior notice. In the event that a product is listed at an inaccurate price due to typographical error or error in pricing information or for any other reason, we have the right to (i) refuse or cancel any orders placed for the product listed at the incorrect price and/or (ii) refuse or cancel any such orders whether or not an order has been confirmed, in which event, we will offer a refund to you of previous amounts paid in respect of your purchase. The display of products on the Squishmallows Website shall not constitute an offer to sell.
When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained on the Squishmallows Website. Sales of products are restricted to North America. All purchases made through the Kelly Toys Services are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from the website pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with the carrier for damaged and/or lost shipments.
INDIVIDUAL CREDIT CARD ORDERS
A customer paying by credit card and ordering on the squishmallows.com website is not permitted to purchase more than three (3) of the same product per day, per household. Limitations on purchase may be subject to change, availability or special promotional offer as indicated on the product page. Customer represents and warrants that the toys are being acquired solely for his or her own use and not for resale to third parties. If customer breaches this representation and warranty, Kelly Toys will avail itself of all remedies available to it under the applicable law.
SUBMISSION AND UNSOLICITED IDEAS AND POLICIES
We do not accept or consider unsolicited creative ideas, suggestions or material. In connection with anything you submit to us – whether or not solicited by us – you agree that creative ideas, suggestions, or other materials you submit are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation, or consideration of any type.
USE OF CONTENT ON THE WEBSITE
The design of the Kelly Toys Services and all text, graphics, information, content, and other material displayed on or that can be downloaded from the Kelly Toys Services are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms and Conditions or with prior written permission of the owner of such material. You may not modify the information or materials displayed on or that can be downloaded from the Kelly Toys Services in any way or reproduce or publicly display, perform, or distribute or otherwise use any such information or materials for any public or commercial purpose. You agree not to circumvent or interfere with security-related features of the Kelly Toys Services or features that prevent or
restrict use or copying of any materials or enforce limitations on use of the Kelly Toys Services or any materials herein. You may not use any robot, “bot”, spider, crawler or other automatic device or manual process to gather data from the site for commercial use. Any unauthorized use of the Kelly Toys Services, or any such information or materials contained herein may violate copyright laws, trademark laws, laws of privacy and publicity, and other laws and regulations.
Certain trademarks, trade names, service marks and logos used or displayed on the Kelly Toys Services are registered and unregistered trademarks, trade names and service marks of Kelly Toys or its affiliate(s). Other trademarks, trade names and service marks used or displayed on the Kelly Toys Services are the registered and unregistered trademarks, trade names and service marks of their respective owners, including our vendors or suppliers. Nothing contained on the Squishmallows Website or through any of the Kelly Toys Services grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on the Kelly Toys Services without the written permission of such other owner.
Squishmallows and Kellytoy are registered trademarks of Kelly Toys Holdings. Kelly Toys also owns the “look and feel” of this website, and names of the brands and individual product items appearing on this website. Unauthorized use or copying of the intellectual property of Kelly Toys, including but not limited to this website or trademarks, logos, pictures, or names contained herein, is prohibited by law. Kelly Toys will take legal action against those who participate directly or indirectly in intellectual property infringement. Anyone having information concerning any unauthorized use of the intellectual property of Kelly Toys is urged to contact Kelly Toys Holdings at: 4811 South Alameda Street, Los Angeles, California 90058; Attn.: Legal Dept.
LINKING TO THE WEBSITE
Creating or maintaining any link from another website to any page on the Squishmallows Website without our prior written permission is prohibited. Running or displaying the Squishmallow Website or any information or material displayed on the Squishmallow Website in frames or through similar means on another website without our prior written permission is prohibited. Any permitted links to the Squishmallows Website must comply will all applicable laws, rules and regulations.
THIRD PARTY LINKS
From time to time, the Squishmallows Website may contain links to other websites that are not owned, operated or controlled by Kelly Toys Cool Toys or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the Squishmallows
Website. Neither we nor any of our affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither we nor any of our affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from the Squishmallows Website, you do so entirely at your own risk.
YOUR USE OF THE KELLY TOYS SERVICES IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE KELLY TOYS SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER COMPANY NOR ANY OF ITS AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH OUR KELLY TOYS SERVICES. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE KELLY TOYS SERVICES MAY BE OUT OF DATE, AND NEITHER, COMPANY, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THE KELLY TOYS SERVICES ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THE KELLY TOYS SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE
COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
You agree to defend, indemnify and hold us harmless from and against any and all claims made by, and any and all damages and judgments (including reasonable attorneys’ fees) awarded to, any third party due to or resulting from: (1) your misuse of our Kelly Toys ; (2) your violation of these Terms and Conditions or any applicable law; or (3) your breach of any of your representations and warranties set forth herein.
LIMITATIONS OF LIABILITY
Neither Kelly Toys nor any of its affiliates, assume any responsibility, and will not be liable for, any damages to, or viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing the Kelly Toys Services, or your downloading of any information or materials from the Squishmallows Website. IN NO EVENT WILL KELLY TOYS , ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF ANY OF THE KELLY TOYS SERVICES, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE KELLY TOYS SERVICES, ANY WEBSITES LINKED TO THE SQUISHMALLOWS WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
IN THE EVENT OF ANY PROBLEM WITH THE KELLY TOYS SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE KELLY TOYS SERVICES. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THE KELLY TOYS SERVICES, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER’S OR SUPPLIER’S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE SQUISHMALLOWS WEBSITE.
REVISIONS TO THESE TERMS AND CONDITIONS
We reserve the right to modify these Terms and Condition at any time. If we modify these Terms and Conditions, we will post the revised Terms and Conditions on the Squishmallows Website and note the date the Terms and Conditions was last updated. We also may highlight the link to the Terms and Conditions, post a notice on the Squishmallows Website or send an email describing the changes. Your continued use of our Kelly Toys Services following any revisions to these Terms and Conditions signifies your agreement to be bound by the revised Terms and Conditions. You should visit this page from time to time to review the then current Terms and Conditions.
COPYRIGHTED MATERIAL – ALLEGED INFRINGEMENT
If you are a copyright owner or an agent thereof and believe that any content of the Kelly Toys Services infringes upon your copyrights, you may submit a notification pursuant to the U.S. Digital Millennium Copyright Act (“DMCA”) or, as applicable, other laws, to the following Designated Agent:
Attention: Legal Counsel
Name of Designated Agent: Kelly Toys Holdings, LLC
Address of Designated Agent: 1067 Shotgun Road, Sunrise, FL 33326 Phone Number of Designated Agent: +1 (954) 353-3092
E-mail Address of Designated Agent: [email protected]
To be effective, the notification must be a written communication that includes the following: A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
BINDING ARBITRATION AND CLASS ACTION WAIVER
These Terms and Conditions provide that all disputes between you and us will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms and Conditions is contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to these Terms and Conditions, including with respect to the interpretation of any provision of these Terms and Conditions or concerning the performance or obligations of Kelly Toys Holdings or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance
with its Commercial Arbitration Rules at the request of either Company or you pursuant to the following conditions:
- (a) Unless you elect to conduct the arbitration by telephone or written submission, an in- person arbitration hearing will be conducted at the JAMS facility in your area.
- (b) Selection of the arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
- (c) The arbitration shall be conducted by a single arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms and Conditions, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
- (d) The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
- (e) You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Kelly Toys Holdings will be responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures. Except where prohibited by law, the prevailing party shall be entitled to an award of reasonable attorney fees.
- (f) The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(g) The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions and you agree that any arbitration or other proceedings by or between you and Nautica will be conducted on an individual basis and not in any class action, consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.
PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL
BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor Kelly Toys Holdings
will seek to have a dispute heard as a class action, private attorney general action, or in
any other proceeding in which either party acts or proposes to act in a representative
capacity. No arbitration or proceeding can be combined with another without the prior
written consent of all parties to the arbitration or proceeding. If the class action waiver is
found to be illegal or unenforceable as to all or some parts of a dispute, those parts will
be severed and proceed in a court of law, with the remaining parts proceeding in
CHOICE OF LAW; JURISDICTION
These Terms and Conditions supersede any other agreement between you and Kelly Toys Holdings to the extent necessary to resolve any inconsistency or ambiguity between them. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Florida and the United States, without giving effect to any principles of conflicts of laws. Any action seeking legal or equitable relief arising out of or relating to the Kelly Toys Services will be brought only in the courts of the State of Florida in the United States District Court for the Southern District of Florida. A printed version of these Terms and Conditions will be admissible in judicial and administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
The provisions for these terms, by their nature, shall survive the termination.
No waiver of any provision of these terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms shall not constitute a waiver of such right or provision.
If you do not understand any of the foregoing Terms and Conditions or if you have any questions or comments, we invite you to contact our Legal Department:
Phone number: (954) 353-3092. E-mail: [email protected]