OVERVIEW

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. 

THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND PROHIBITS CLASS ACTION CLAIMS, UNLESS OTHERWISE SPECIFIED HEREIN, INCLUDING IN THE EVENT THAT YOU CHOOSE TO OPT-OUT. ARBITRATION MEANS YOU WAIVE YOUR RIGHT TO A JURY TRIAL. FOR MORE DETAILS ON THESE MATTERS, AND HOW YOU CAN OPT-OUT OF ARBITRATION, SEE THE SECTION TITLED “DISPUTE RESOLUTION” BELOW. 

YOU MAY NOT USE THIS WEBSITE IF YOU (A) YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR (B) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, PRODUCTS, OR SERVICES BY APPLICABLE LAW. 

These Terms of Service (“Terms”) constitute an agreement between you (“you” or “your”) and Buttercloth (“Buttercloth,” “we”, “us,” or “our”) concerning your use of our website buttercloth.com (the “Site”), the information, tools, content, and services (collectively, the “Services”) available via the Site, all related apps, and the purchase of products (individually, a “Product” and collectively, the “Products”) through the Site. Buttercloth offers the Site, Services, and Products to you conditioned upon your acceptance of all terms, conditions, policies and notices referenced under these Terms, including those additional terms, conditions, and policies available via hyperlink. By accessing and using the Site, you acknowledge and agree to abide by the following Terms. If you do not agree to these Terms, do not access or use the Site. If these Terms are considered an offer, acceptance is expressly limited to these Terms.

 

Any new features or tools which are added to the current store shall also be subject to these Terms. You can review the most current version of the Terms at any time on this page.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

You and Buttercloth agree that Buttercloth may modify these Terms. To the extent permitted by applicable law, you agree that any modifications will take effect immediately upon posting on the Site.

 

SECTION 1 - ONLINE STORE TERMS

By agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Site.

You may not use our Products for any illegal or unauthorized purpose nor may you, in the use of the Site and Services, violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code of a destructive nature.

A breach or violation of any of the Terms will result in an immediate termination of your access to the Site and use of the Services.

 

SECTION 2 - GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Site or Services, use the Site or Services, or access the Site, Services, or any contact on the website through which the Services are provided, without express written permission by us.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

 

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We are not responsible if information made available on this Site is not accurate, complete, or current. The material on this Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this Site is at your own risk.

This Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.

 

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our Products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Services (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension, or discontinuance of the Services.

 

SECTION 5 - PRODUCTS OR SERVICES (if applicable)

Certain Products or Services may be available exclusively online through the Site. These Products or Services may have limited quantities and are subject to return or exchange only according to our Return Policy.

We have made every effort to display as accurately as possible the colors and images of our Products that appear on the Site. We cannot guarantee that your computer monitor's display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our Products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products or Services that we offer. All descriptions of Products or Product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any Product or Services made on this Site is void where prohibited.

We do not warrant that the quality of any Products, Services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Services will be corrected.

 

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete, and accurate purchase and account information for all purchases made through the Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more detail, please review our Returns Policy.

 

SECTION 7 - OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.

 

SECTION 8 - THIRD-PARTY LINKS

Certain content, products, and services available via our Site and Services may include materials from third-parties.

Third-party links on this Site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

 

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

We may, but have no obligation to, monitor, edit, or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violates any party’s intellectual property or these Terms.

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality, or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site, Services, or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

 

SECTION 10 - PERSONAL INFORMATION

Your submission of personal information through the Site is governed by our Privacy Policy. To view our Privacy Policy.

 

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our Site or in the Services that contains typographical errors, inaccuracies, or omissions that may relate to Product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Site, Services, or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend, or clarify information in the Site, Services, or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Site, Services, or on any related website, should be taken to indicate that all information in the Site, Services, or on any related website has been modified or updated.

 

SECTION 12 - PROHIBITED USES

In addition to other prohibitions as set forth in the Terms, you are prohibited from using the Site, or Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Site, Services, any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Site, Services, any related website, other websites, or the Internet. We reserve the right to terminate your use of the Site, Services, or any related website for violating any of the prohibited uses.

 

SECTION 13 - SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

Buttercloth is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Messaging Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these Terms and the Messaging Agreement, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Messaging Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and us in other contexts.

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 Messaging 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 Messaging 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 this Messaging Agreement. 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 support@buttercloth.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 or engage with the Program if you are under thirteen (13) years of age. If you use or engage with the Program 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 Program, 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 Program, or are of adult age in your jurisdiction. By using or engaging with the Program, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Program.

Prohibited Content: You acknowledge and agree to not send any prohibited content over the Program. 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.

Miscellaneous: You warrant and represent to us that you have all necessary rights, power, and authority to agree to this Messaging Agreement and perform your obligations hereunder, and nothing contained in this Messaging 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 Messaging Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Messaging 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 Messaging Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Messaging Agreement from time to time. Any updates to this Messaging Agreement shall be communicated to you. You acknowledge your responsibility to review this Messaging 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 Messaging Agreement, as modified.

 

SECTION 14 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

WE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF OUR SITE, SERVICES, PRODUCTS, OR PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.

WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, PRODUCTS, OR PROGRAM WILL BE ACCURATE OR RELIABLE.

YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SITE, SERVICES, PRODUCTS, OR PROGRAM FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SERVICES AT ANY TIME, WITHOUT NOTICE TO YOU.

YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SITE, SERVICES, PRODUCTS, AND PROGRAM IS AT YOUR SOLE RISK. THE SITE, SERVICES, PRODUCTS, AND PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. BUTTERCLOTH AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, PARTNERS, AGENTS, LICENSORS, AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, INTERNS, OR SHAREHOLDERS (THE “BUTTERCLOTH PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE, IN CONNECTION WITH THE SITE, SERVICES, PRODUCTS, OR PROGRAM.

CERTAIN STATE LAWS DO NOT ALLOW THE DISCLAIMER OR LIMITATION OF IMPLIED OR OTHER WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

SECTION 15 – LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT BUTTERCLOTH AND THE BUTTERCLOTH PARTIES ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE SITE, PRODUCTS, SERVICES, OR PROGRAM. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, AND CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES. THESE LIMITATIONS ON LIABILITY SHALL APPLY REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT BUTTERCLOTH OR THE BUTTERCLOTH PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

BUTTERCLOTH AND THE BUTTERCLOTH PARTIES’ SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED THROUGH THE SITE.

CERTAIN STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

SECTION 16 - INDEMNIFICATION

You agree to indemnify, defend and hold harmless Buttercloth and the Buttercloth Parties from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

 

SECTION 17 - TIME LIMITATION FOR CLAIMS

ANY CLAIMS AGAINST BUTTERCLOTH OR THE BUTTERCLOTH PARTIES RELATING IN ANY WAY TO THESE TERMS, THE SITE, SERVICES, PRODUCTS, OR PROGRAM MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE EVENTS FIRST GIVING RISE TO THE CLAIMS OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF SUCH PERIOD IS GREATER THAN ONE (1) YEAR. IF NOT COMMENCED WITHIN THE APPLICABLE PERIOD, YOU AND BUTTERCLOTH ARE PERMANENTLY BARRED FROM PURSUING THAT CLAIM. 

 

SECTION 18 - DISPUTE RESOLUTION

 

PLEASE READ THE “AGREEMENT TO ARBITRATE” AND “CLASS ACTION WAIVER” SECTIONS BELOW CAREFULLY.

 

Agreement to Arbitrate.

Arbitration is the referral of a dispute to one or more individuals who will review the dispute and make a final and binding determination to resolve the dispute instead of having the dispute decided by a judge or jury in court. YOU AND BUTTERCLOTH EACH AGREE THAT ANY AND ALL DISPUTES, CLAIMS, CONTROVERSIES, OR CAUSES OF ACTION BETWEEN YOU AND BUTTERCLOTH, OR BETWEEN YOU AND THE BUTTERCLOTH PARTIES, THAT ARISE, HAVE ARISEN, OR RELATE IN ANY WAY TO THE SITE, SERVICES, PRODUCTS, THESE TERMS, THE PROGRAM, OR ANY OTHER TRANSACTION OR INTERACTION, WHETHER OCCURRING IN THE PAST, PRESENT, OR FUTURE, INVOLVING YOU AND BUTTERCLOTH OR THE BUTTERCLOTH PARTIES (“CLAIMS”) SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS.    

This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate. 

This Agreement to Arbitrate does not apply to actions by Buttercloth for intellectual property claims, including by way of example, trade secret misappropriation, patent infringement, copyright infringement or misuse, and/or trademark infringement or dilution. 

CLASS ACTION WAIVER.  

EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, YOU AND BUTTERCLOTH AGREE THAT ALL CLAIMS MAY BE BROUGHT ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS OR CLASS ARBITRATIONS. ACCORDINGLY, EXCEPT AS PROVIDED BY THESE TERMS, OR UNLESS YOU AND BUTTERCLOTH CONSENT IN WRITING, THE ARBITRATOR SHALL NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED OR DECISION MADE CANNOT AFFECT OTHER BUTTERCLOTH CUSTOMERS.

Pre-Arbitration Notice.

In the event of a dispute or claim (the “Action”), you or Buttercloth must first send to the other party a notice of the Action that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Action, and the relief requested. The notice to Buttercloth must be addressed to admin@buttercloth.com or 2160 W. 190^th St, Torrance, CA  90504. The notice from Buttercloth to you will be sent by certified mail to the most recent address or email we have on file for you. If Buttercloth and you do not resolve the Action within sixty (60) calendar days after the notice of the Action is received, you or Buttercloth may commence an arbitration proceeding pursuant to this section. Each party agrees to act in good faith to resolve the Action before commencing arbitration.

Procedure.

Arbitration shall be administered by the American Arbitration Association (“AAA”) and be governed by the AAA Commercial Arbitration Rules (“AAA Rules”). If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. Any Action shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, except that the arbitrator shall not award punitive damages to either party. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

Arbitration Fees.

Payment of all AAA or arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in these Terms. If the value of the relief sought is $10,000 or less, at your request, Buttercloth will pay all AAA or arbitrator fees associated with the arbitration. Any request for payment of fees by Buttercloth should be submitted by mail to the AAA along with your Demand for Arbitration and Buttercloth will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, Buttercloth will pay as much of the AAA or arbitrator fees as the arbitrator deems necessary to prevent the cost of accessing the arbitration from being prohibitive. In the event the arbitrator determines that either the substance of your of Buttercloth’s claim or the relief sought was frivolous or brought for an improper purpose, then you or Buttercloth may seek to recover from the other party any fees paid, including attorneys’ fees, to the extent permitted by the AAA’s rules and applicable law.

Mass Filing.

In the event of a Mass Arbitration, as that term is defined by the AAA Mass Arbitration Supplementary Rules, you agree to application of the AAA Mass Arbitration Supplementary Rules and Consumer Mass Arbitration and Mediation Fee Schedule then in effect and currently available at https://www.adr.org/mass-arbitration.  

Hearing Format.

The arbitration shall occur in one of the following locations: (i) your county of residence; (ii) Los Angeles County, California; (iii) virtually; or (iv) as mutually agreed upon between you and Buttercloth. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. If the Mass Filing process described above is triggered, then the location of any hearing will be determined by the arbitrator.

Small Claims Court.

Notwithstanding the foregoing, you may bring an individual action in the small claims court of your county of residence or Los Angeles County, California, if the action is within that court’s jurisdiction and is pending only in that court. 

Opt-Out.

You may elect to opt-out from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in these Terms by sending a letter to Buttercloth at admin@buttercloth.com or 2160 W. 190^th St, Torrance, CA  90504, postmarked within thirty (30) calendar days of your initial agreement to these Terms (including your first use of the Services) that specifies: (1) your name; (2) Your mailing address; (3) and your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in these Terms. In the event that you opt-out consistent with the procedures set forth above, all other terms of these Terms shall continue to apply.

Severability.

If any provision in this “Dispute Resolution” section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire “Dispute Resolution” Section shall be null and void. The terms of this section shall otherwise survive any termination of these Terms.

 

SECTION 19 - CHOICE OF LAW AND JURISDICTION

These Terms shall be governed and interpreted in accordance with the laws of the United States and the State where your purchase is made or where you access the Site, excluding its conflict of laws rules. The parties exclude the application of the Convention on International Sale of Products to these Terms. For any claim or dispute with Buttercloth relating to the Site, Services, Products, Program, or these Terms not governed by the Agreement to Arbitrate or Small Claims Court provision, you expressly agree that such claim or dispute shall be resolved in the United States District Court for the Central District of California, and you submit to the personal jurisdiction of that court. If subject matter jurisdiction does not exist in the United States District Court for the Central District of California, then the exclusive forum and venue for any such claim or dispute shall be the courts of the State of California located in Los Angeles County, California, and you submit to the personal jurisdiction of that court. In the event of any violation of these Terms, Buttercloth reserves the right to seek all remedies available under law and equity for such violations.

 

SECTION 20 - NOTICE FOR CALIFORNIA RESIDENTS

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If You have a question or complaint regarding the Site, please send an email to admin@buttercloth.com. You may also contact us by writing to Buttercloth or 2160 W. 190^th St, Torrance, CA  90504, or by calling us at (800) 203-2650. 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., 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) 322-1700.

 

SECTION 21 - SEVERABILITY

In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.

 

SECTION 22 - TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

Notwithstanding any other provision of these Terms, Buttercloth reserves the right, at its sole discretion, to deny you access to the Site or Services at any time, immediately and without notice, if you fail to comply with any term or condition of these Terms.

 

SECTION 23 - ENTIRE AGREEMENT

These Terms shall constitute the entire agreement between you and Buttercloth and shall supersede all prior and contemporaneous proposals, negotiations and counterproposals. The parties intend for the Terms to be a final expression of their agreement and a complete and exclusive statement of the terms and conditions thereof. Prior dealings between you and Buttercloth or usage of trade (whether occurring in the past, present, or future) shall not be relevant to supplement or explain any term used in these Terms. Acceptance or acquiescence in a course of performance rendered under the Terms shall not be relevant to determine the meaning of the Terms even though the accepting or acquiescing party has knowledge of the nature of the performance or usage of trade and an opportunity for objection. Nothing in the Terms shall be construed as creating any direct or beneficial right in or on behalf of any third party.

 

SECTION 24 - CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at admin@buttercloth.com.