Terms & Conditions

Last updated June 23, 2023

 

Welcome to the Character Home, Inc. website located at www.withcharacter.com (the “Site”). The terms “Character,” “we” or “us” include Character Home, Inc. and our affiliates and subsidiaries. Please read these Terms of Service (the “Terms”), our Privacy Policy (“Privacy Policy”) and our Limited Warranty Terms (“Warranty Terms”) carefully because they govern your use of our Site, our Character Membership and related services and Character products (“Products”). To make these Terms easier to read, the Site, our online store and services are collectively called the “Services.”

 

(1) Agreement to Terms. By using our Services, you represent that (1) you have read, understand, and agree to be bound by these Terms, (2) you are of legal age to form a binding contract with Character, and (3) you have the authority to enter into the Terms personally. If you do not agree to be bound by these Terms, do not use the Services.

 

(2) Privacy Policy. Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.

 

IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CHARACTER THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).

 

(3) Changes to Terms or Services. We may update the Terms at any time, in our sole discretion. If we do so in a material manner, we will let you know either by posting the updated Terms on the Site or through other communications, such as e-mail. It is important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you agree to be bound by the updated Terms. If you do not agree to be bound by the updated Terms, then, except as otherwise provided in Section 18, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

 

(4) Who May Use the Service?

(a) Eligibility. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Character and are not barred from using the Services under applicable law.

(b) Registration and Your Information. In order to access certain features of the Services, such as registering for certain giveaways or promotions that we may offer from time to time, posting a product review, or becoming a member of the Referral program, you may be required to become a Registered User. For the purposes of the Terms, a “Registered User” is a user who has registered an account on the Site (“Account”). 

(c) Accuracy of Account Information. In registering an Account, you agree to provide us with accurate, complete and up-to-date information for your Account and you agree to maintain and promptly update such information to keep it accurate, complete and up-to-date. If you do not provide accurate, complete and up-to-date information, we might have to suspend or terminate your Account. You agree that you will not disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.

 

(5) Feedback. We welcome feedback, comments and suggestions for improvements to the Services and Products (“Feedback”). You can submit Feedback by emailing us at hello@withcharacter.com. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose in connection with Character’s business.

 

(6) Purchase of Products. You may purchase Products in our online store accessible on the Site. All Products, specifications, and prices described on the Site are subject to change at any time without notice.

(a) Payments. When you purchase a Product and make a payment via the Site (each such purchase, a “Transaction”), you expressly authorize our third-party payment processor to charge you for such Transaction. Our third-party payment processor may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By providing your credit card number and associated Payment Information, you agree that Character’s third-party payment processor is authorized to immediately charge your card for all fees due and payable to us and that no additional notice or consent to do so is required. 

(b) Prices. Prices for the Products will be displayed in US dollars.

(c) Taxes. If Character determines we have a legal obligation to collect a Sales Tax from you in connection with these Terms, Character shall collect such Sales Tax in addition to the payments required under this Section 6. If any Services, or payments for any Services, under the Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Character, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Character for any liability or expense we may incur in connection with such Sales Taxes. Upon Character’s request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section 6, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. 

(d) Shipping. Products purchased via the Site will be shipped to the address you designate as the shipping address during the check-out process. Shipping restrictions apply (please visit Character’s FAQ’s page for more information). The applicable shipping rates will be displayed during the checkout process and must be in the United States.

(e) Returns. You may return Products that you purchase via the Site in accordance with Character’s return policy available on the Site (please visit Character’s FAQ’s page for more information).

(f) Warranty. Character Products are covered by a limited warranty (please visit Character’s Warranty page for more information). 

 

(7) Purchase of Subscription Membership. By purchasing or using a Character Membership, you agree to the following terms and conditions, which supplement and form a part of the Character Terms of Service. “Character Membership” is a paid subscription that provides you with access to services and benefits which may include:

 

  • Expert support 7 days per week
  • Free shipping, always (for orders to the continental US)
  • Early access to new products
  • Access to DIY knowledge base
  • Adaptive how-to content
  • Member discounts & offers
  • Member community
  • Free events & classes

 

(a) Membership recurs on an annual basis until it is canceled in accordance with these Membership Terms. Billing occurs at the beginning of the Membership cycle and provides you with access for 12 months thereafter unless otherwise terminated or canceled in accordance with these Membership Terms. By purchasing a Membership, you acknowledge that your Membership has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Membership by you or Character. To change or terminate your Membership, go to your Account or contact Character’s support team at help@withcharacter.com. 

(b) Character may offer additional promotions or discounts related to Memberships from time to time. Please read the details of those offers carefully, as any additional terms presented to you during the signup process will form a part of these Terms. Unless specified in writing, all discount offers that require a payment are non-refundable. Any free trial or other promotion must be used within the specified time frame of the trial or promotion. You may be required to have a valid payment method on file in order to initiate a free trial; in this case, if you do not cancel before your free trial period ends, your account will be converted to a paid Membership and will be charged in accordance with these Membership Terms.

(c) If you terminate your Membership, you may use your Membership until the end of the then-current period and your Membership will not be renewed after that period expires. You will not be eligible for a prorated refund of any portion of the Membership fee paid for the then-current Membership period.

(d) Character may immediately terminate or suspend your account, and all or a portion of your Membership, without notice if:

 

  • your payment is overdue by 10 days (provided that we will use reasonable efforts to notify you of the overdue payment before we terminate or suspend or account);
  • you provide Character with false or inaccurate information;
  • you violate these Terms or any other Character rules or agreements then in effect;
  • you engage in conduct that is a violation of any applicable law or tariff (including, without limitation, copyright and intellectual property laws); or
  • if you engage in conduct that is threatening, abusive or harassing to Character employees, agents, or other Character users, including, for example, making threats to physically harm or damage property

 

If we terminate or suspend your Membership, your license to use any services or content provided in connection with the Membership is also terminated or suspended (as applicable). If your Membership is terminated, Character has the right (except as prohibited by applicable law) to immediately delete all data, files, and other information stored in or for your account without further notice to you. You must pay all charges up to and including the date of termination. Should you wish to resume your Membership after any suspension, a restoration of service fee may apply. This fee is in addition to all past due unpaid charges and other fees. 

(e) By purchasing a Membership, you agree to pay the annual fee specified when you purchased your Membership (plus any applicable taxes and other charges). If the amount to be charged varies from the amount you pre-authorized (other than due to the imposition of, or change in, applicable sales tax), you have the right to receive, and we will provide, notice of the amount to be charged and the date of such charge before the scheduled date of the transaction, unless applicable law requires you to expressly consent to the change in price. Any agreement you have with your payment provider governs your use of your specified payment method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. Your failure to terminate and/or continued use of your Membership reaffirms that we are authorized to charge you for that Membership. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you.

(f) You may be asked to provide a payment method as outlined in Section 6(a) above. You hereby authorize us to charge your specified payment method on a monthly or annual basis in line with your Membership cycle, in advance, for your Membership(s) and/or to place a hold on your payment method with respect to any unpaid charges for your Membership(s). You authorize the issuer of your selected payment method to pay any amounts described herein without requiring a signed receipt, and you agree that these Membership Terms shall be accepted as authorization to the issuer of the payment method to pay any amounts described herein, without requiring a signed receipt from you. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your payment method until such amounts are paid in full. You agree to provide updated payment information upon request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither Character, nor any Character agent, will have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of attempts to charge, and/or place holds on, your specified payment method as contemplated by these Terms of Service. If you provide a debit card number instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number.

(g) You agree to pay us, through our payment processors or financing partners (as applicable), all charges at the prices then in effect for any purchase in accordance with the applicable payment terms presented to you at the time of purchase. You agree to make payment using the payment method you provide when you set up your account. We reserve the right to correct, or to instruct our payment processors or financing partners to correct, any errors or mistakes, even if payment has already been requested or received.

(h) If you believe you have been billed in error for a Membership, please notify us within 30 days of the billing date by contacting our support team at help@withcharacter.com. Character will not issue refunds or credits after the expiration of this 30-day period, except where required by applicable law.

 

(8) Offer Codes; Spokespeople.

(a) Offer Codes. From time to time, Character may offer promotional or offer codes that are redeemable towards a purchase of Products on the Site (“Offer Codes”), subject to expiration dates, Product exclusions and any other restrictions as may be determined and communicated by Character in its sole discretion. Only valid Offer Codes provided by Character will be honored by Character. Each Offer Code offered by Character (i) is non-transferable, (ii) is valid for one single purchase on the Site, (iii) cannot be combined with other promotions, discounts or offers, and (iv) cannot be redeemed for cash or any cash equivalent. Character is not responsible for any unauthorized use of Offer Codes. The monetary value of the Offer Code will not be refunded or credited back if the Product purchased using the Offer Code is returned. Offer Codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. 

(b) Offer Codes from Spokespeople. From time to time, Character may engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of our brand. If you receive an Offer Code from a third party source, please note that such individual may have been compensated by Character for his or her statements.  

 

(9) Access to the Site; User Content.

(a)  License. Subject to these Terms, Character grants you a non-transferable, non-exclusive, revocable, limited license to (i) use and access the Site solely for your own personal, noncommercial use; and (ii) access, download and use the content and information made available by Character on the Site (“Content”) solely or personal, noncommercial purposes. 

(b) Ownership.  You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Content (excluding User Content) are owned by Character. Neither these Terms nor your access to the Site transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in this Section 9. Character reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms. 

(c) Modification. Character reserves the right, at any time, to modify, suspend or discontinue the Site, in whole or in part, with or without notice to you. You agree that Character will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.

(d)  No Support or Maintenance. You acknowledge and agree that Character will have no obligation to provide you with any support or maintenance in connection with the Site. 

(e) User Content. “User Content” means any Content that Site visitors (including Account holders) provide to be made available through the Services, including Product reviews. Character does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. By making any User Content available through the Services, you hereby grant to Character a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services to you and to other Site visitors. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Character on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(f) Character Enforcement Rights. Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content (including without limitation User Content), we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

 

(10) General Prohibitions. You agree not to do any of the following:

(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

(b) Use, display, mirror or frame the Services or any individual element within the Services, Character’s name, any Character trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Character’s express written consent; 

(c) Access, tamper with, or use non-public areas of the Services, Character’s computer systems, or the technical delivery systems of Character’s providers; 

(d) Attempt to probe, scan or test the vulnerability of any Character system or network or breach any security or authentication measures; 

(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Character or any of Character’s providers or any other third party (including another user) to protect the Services or Content; 

(f) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Character or other generally available third-party web browsers; 

(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; 

(h) Use any meta tags or other hidden text or metadata utilizing a Character trademark, logo URL or product name without Character’s express written consent; 

(i) Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms; 

(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information; 

(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content; 

(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; 

(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission; 

(n) Impersonate or misrepresent your affiliation with any person or entity; 

(o) Violate any applicable law or regulation; or

(p) Encourage or enable any other individual to do any of the foregoing.

 

(11) DMCA/Copyright Policy. Character respects copyright law and expects its Site users to do the same. It is Character’s policy to terminate in appropriate circumstances Account and Membership holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. If you have an intellectual property rights-related complaint about material posted on the Services, you may contact us at the following address:

 

Character

ATTN: Legal Department (Copyright Notification)

321 N Loomis Street Suite 101

Chicago, IL 60607

Email: hello@withcharacter.com

 

Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must comply with elements of notification as described in 17 U.S.C. §512.

 

(12) Links to Third Party Websites or Resources. The Services may contain links to third-party websites or resources. When you click on a link to a third-party website or resource, we will not warn you that you have left our Site and you are subject to the terms and conditions of another website or resource. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.

 

(13) Mobile Terms of Service. The Character mobile message service (the "Service") is operated by Character Home, Inc. Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.

By consenting to Character’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of Character through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).

You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with Character. Your participation in this program is completely voluntary.

We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.

You may opt-out of the Service at any time. Text the single keyword command STOP to +18555880231 or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Character mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.

For Service support or assistance, text HELP to +18555880231 or email help@withcharacter.com.

We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.

The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.

To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.

We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Policy.
 

(14) Term and Termination.

(a) Term. The Terms commence on the date when you accept them (as described above) and remain in full force and effect while you use the Site and/or Services, unless terminated earlier in accordance with Section 13(b). 

(b) Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You agree that Character shall not be liable to you or any third party for any termination of your Account. You may cancel your Account or Membership at any time by sending an email to us at hello@withcharacter.com. 

(c) Effect of Termination. Termination of any Service includes removal of access to such Service and barring further use of the Service. Termination of all Services also includes deletion of your password and all related information and content associated with or inside your Account. Upon any termination, discontinuation or cancellation of the Services and/or your Account, the following Sections will survive: Access to the Site, Warranty Disclaimers, Limitation of Liability,  Dispute Resolution, General Terms, and any other provision which, by its nature, is intended to survive termination.

 

(15) Warranty Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED IN THE WARRANTY TERMS, THE PRODUCTS, SERVICES, AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM USE OF THE SITE. This Section 14 does not affect in any way our return policy or limited warranty for Products purchased on the Site. If for any reason you are not satisfied with a purchase you make on the Site, please return it in accordance with the terms of our return policy or limited warranty, as available at withcharacter.com/pages/warranty.

(a) Except as set forth in our limited warranty, we make no warranty that the Products or Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.

(b) Any Content accessed through the Services is accessed at your own risk, and you shall be solely responsible for any damage to your property, including, but not limited to, your computer system and any device you use to access the Services, or any other loss that results from accessing such content.

(c) The Services may be subject to delays, cancellations, and other disruptions. We make no warranty with respect to the Services, including, but not limited to, the quality, effectiveness, reputation and other characteristics of the Services. 

 

(16) Injury waiver. Through this site and its support team, Character offers instructions and guidance for home improvement projects. You acknowledge home improvement involves inherent risks, dangers and hazards which may result in injury, including death. You agree to indemnify and hold harmless Character from and against any and all claims for personal injuries or damages of any kind arising from use of its products and services. You should use your best judgment and exercise caution where appropriate. Your use of this Site and any other education provided by Character are entirely at your own risk. 

 

(17) Indemnity. To the fullest extent permitted by law, you will indemnify and hold harmless Character and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content in a manner not authorized by these Terms, (ii) your User Content, or (iii) your violation of these Terms.

 

(18) Limitation of Liability.

(a) NEITHER CHARACTER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PRODUCTS, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CHARACTER OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 

(b) IN NO EVENT WILL CHARACTER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS, SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO CHARACTER FOR THE PURCHASE OF THE PRODUCTS OR USE OF THE SERVICES OR CONTENT, AS APPLICABLE, OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO CHARACTER.

(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CHARACTER AND YOU AND APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

 

(19) Dispute Resolution. Please read the following arbitration agreement in this Section 18 carefully. It requires you to arbitrate disputes with Character and limits the manner in which you can seek relief from us.

YOU AND CHARACTER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

(b)The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 18. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section 18.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

(c)You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.

(d)You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR CHARACTER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced. 

 

(20) General Terms.

(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Character and you regarding the Site, Products, Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Character and you regarding the Services and Content.

(b) Notices. Any notices or other communications provided by Character under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

(c) Waiver of Rights. Character’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Character. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

(e) Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the laws of the State of Illinois. Except as otherwise expressly set forth in Section 18 “Dispute Resolution” the exclusive jurisdiction for all Disputes (defined above) that you and Character are not required to arbitrate will be the state and federal courts located in the State of Illinois, and you and Character each waive any objection to jurisdiction and venue in such courts.

(f) Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Character’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. Character may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(g) Severability. With the exception of the class action waiver, if any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

(h) Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

(21) Contact Information. If you have any questions about these Terms, the Site, or the Products or the Services, please contact Character at hello@withcharacter.com.