1. Proprietary Rights.
The Site and its contents, including text, graphics, images, photographs, illustrations, videos, audio, code, data, trademarks, service marks, logos, taglines, slogans, trade names, documents, data sheets, and other information and material, made available on or accessed through the Site (collectively, the “Content”) and any and all intellectual property and proprietary rights inherent therein or appurtenant thereto, are owned by Blello or its licensors and are protected under applicable laws, including copyright and trademark laws. Your use of the Site does not grant to you ownership of any of the Content. Except as stated herein, none of the Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior written permission of authorized personnel of Blello, its licensors or the otherwise applicable rights holders.
The trademarks, service marks, logos, taglines, slogans and trade names (collectively, the “Marks”) displayed on the Site or on the Content are registered and/or unregistered Marks of Blello, its licensors and/or other rights holders and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their respective rights holders or that otherwise are likely to cause customer confusion, or in any manner that disparages or discredits their respective rights holders. All Marks not owned by Blello that appear on the Site or on the Content are the property of their respective owners. Nothing contained on the Site or on the Content should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Mark displayed on the Site or on the Content without the written permission of Blello or the otherwise applicable rights holders. Your misuse, including any unauthorized use, of the Marks displayed on the Site or on the Content is strictly prohibited.
2. Limited License.
Except for the limited permission in the preceding paragraph, Blello does not grant you any express or implied rights or licenses under any patents, trademarks, copyrights or other proprietary or intellectual property rights of Blello or of any third party, whether by estoppel, implication or otherwise.
The Content may not be modified, copied, posted on any network computer or broadcasted in any media. You may not mirror the Site or any of the Content on another web site or in any other media.
4. Purchase of Products and Services.
You agree to use the Product as directed, and in compliance with all labels, label instructions, and warnings on the mattress and any inserts, and any failure by you to do so will void all warranties.
Payment Terms. Payment is due prior to shipment of Products or receiving Services. Products and Services are obtained by adding them to your shopping “cart” and when you are ready to “check out” and pay you will be required to provide the required information specified, including your selection from available payment methods and your shipping information. A receipt will be emailed to the email address provided by you.
Shipping and Returns. The provisions governing shipping and return of products are found at www.blello.com.
Warranties as to Products and 100 Night Guarantee. Blello’s express limited warranties as to Products and the 100 Night Guarantee Program are found at www.blello.com (the “Limited Warranties”). Purchaser’s sole and exclusive remedies for breach of any Limited Warranties are as set forth in the Limited Warranties. THE LIMITED WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
DISCLAIMERS OF WARRANTIES. EXCEPT AS PROVIDED IN THE LIMITED WARRANTIES, TO THE FULLEST EXTENT PERMITTED BY LAW BLELLO HEREBY DISCLAIMS ALL WARRANTIES, GUARANTEES AND REPRESENTATIONS OF ANY KIND OR NATURE RELATING TO ALL PRODUCTS AND SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY OPERATION OF LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, ABSENCE OF SECURITY INTEREST, ENCUMBRANCE OR LIEN, AND QUIET ENJOYMENT . SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU AND IN SUCH STATES OUR LIABILITY WILL BE DEEMED LIMITED TO THE EXTENT PERMITTED BY LAW. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL BLELLO OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR VENDORS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR ENHANCED, PUNITIVE OR EXEMPLARY DAMAGES, RESULTING FROM OR RELATING TO THE PRODUCTS OR SERVICES OR ANY CONTENT, INFORMATION OR MATERIALS ASSOCIATED THEREWITH, INCLUDING WITHOUT LIMITATION BODILY INJURY, PERSONAL INJURY OR DEATH, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLELLO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BLELLO’S LIABILITY FOR ALL CLAIMS BY YOU IN THE AGGREGATE ARISING FROM A PARTICULAR PRODUCT OR SERVICE OR ANY CONTENT, INFORMATION OR MATERIALS ASSOCIATED THEREWITH EXCEED THE PURCHASE PRICE OF THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM OR LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND IN SUCH STATES OUR LIABILITY WILL BE DEEMED LIMITED TO THE EXTENT PERMITTED BY LAW.
5. Use Restrictions and Prohibited Conduct.
Any commercial or promotional distribution, publishing or exploitation of the Site or any of the Content is strictly prohibited unless you have received the express prior written permission from authorized personnel of Blello, Blello’s licensors or the otherwise applicable rights holders. Other than as expressly allowed herein, you may not download, post, display, publish, copy, reproduce, distribute, transmit, modify, perform, broadcast, transfer, create derivative works from, sell or otherwise exploit the Site or any of the Content. You agree that you may not alter, edit, delete, remove, otherwise change the meaning or appearance of, or repurpose any of the Content. You further agree that you may not alter or remove any Marks or any other proprietary content or proprietary rights notices contained in the Content. You acknowledge that you do not acquire any ownership rights by downloading any copyrighted Content made available on or accessed through the Site.
You agree that you shall not: (a) hold yourself out as a representative, agent or employee of Blello and/or impersonate any individual or entity or misrepresent your affiliation with any individual or entity; (b) use the Site in any manner with the intent to interrupt, damage, disable, overburden or impair the Site; (c) use the Site or any of the Content in violation of Blello’s or any third party’s intellectual property or other proprietary or legal rights; (d) use the Site or any of the Content in violation of any applicable laws; (e) attempt (or encourage or support anyone else’s attempt) to circumvent, reverse engineer, decrypt or otherwise alter or interfere with the Site, or make any unauthorized use thereof; (f) obtain or attempt to obtain any content, materials or information through any means not intentionally made publicly available or provided for through the Site; (g) attempt to gain unauthorized access to the Site through hacking, password mining or any other means; or (h) use or attempt to use any “spider”, “robot”, “bot”, “scraper”, “data minder” or any other program, device or algorithm, process or methodology to access, acquire, copy or monitor the Site (or portions thereof) or the Content (or portions thereof).
6. Registration and Passwords.
As part of the registration process, you are required to select and use a password. As a Registered User, you acknowledge that you are solely responsible for all activities that occur under your password or account while using the Site. You are responsible for maintaining the security and confidentiality of your password and monitoring and controlling access to your account. You agree to notify Blello immediately of any unauthorized use of any account or password, or any other known or suspected breach of security.
The Site may be indexed by search engines that survey the Web and are available to the public generally.
8. User Submissions.
Blello does not claim ownership of any information or material a user transmits, posts or uploads to or through the Site by any means, including, without limitation, by message boards, chat rooms or similar discussion forums, blogs, wiki pages or otherwise (“Submissions”). Blello does not want you to, and you should not, send any confidential or proprietary information to Blello via the Site. All Submissions will be treated as non-confidential and non-proprietary, and may be disseminated or used by Blello for any purpose and in any way without any compensation. In addition, you agree that Blello is free to use any ideas, concepts or know-how contained in any Submission.
By making a Submission to or through the Site, you automatically grant Blello an unrestricted, irrevocable, worldwide, royalty-free license to use, reproduce, display, publicly perform, transmit and distribute such Submission, alone or as part of other works in any form, media, or technology whether now known or hereafter developed.
You warrant and represent that you shall not transmit, post or upload to or through the Site any Submission that is, in or whole or in part, libelous, scandalous, inflammatory, discriminatory, defamatory, false, threatening, vulgar, obscene, pornographic, profane, abusive, harassing, invasive of another’s privacy, hateful or bashing, aimed at gender, race, color, sexual orientation, national origin, religious views or disability, or otherwise unlawful, or that violates or infringes on the privacy, publicity, intellectual property, proprietary, contractual or other rights of any third party.
Blello does not represent or warrant the truthfulness, accuracy or reliability of any content, information or material contained in any Submissions made to or through the Site by users or endorse any statements, representations or opinions expressed by users in their Submissions. Your reliance on content, information, material, statements, representations or opinions contained in any Submissions made to or through the Site by other users shall be at your own risk. Any product claim, statistic, quote or other representation about a product and/or service contained in a Submission should be verified with the applicable manufacturer or provider.
9. Copyright Infringement Claims.
Pursuant to the Digital Millennium Copyright Act (17 U.S.C. §512, as amended), if you believe in good faith that copyrighted work has been copied, adapted, reproduced or exhibited on the Site in a manner that constitutes copyright infringement, you may submit written notification of the claimed infringing activity addressed to our Designated Agent, Mark Ventola at: by mail, c/o Sheehan Phinney; by email, email@example.com. If you need to speak with our Designated Agent he may be reached by telephone at: 617-897-5600.
To be effective, the notification must include the following information, or such other information as required under the Digital Millennium Copyright Act then in effect: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) 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; (c) 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; (d) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. We suggest that you consult your legal advisor before submitting written notification, as the above-stated requirements may have changed.
In appropriate circumstances, Blello, at its sole discretion, may suspend or terminate any user’s access to the Site and/or take other action against users where infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.
10. Disclaimers and Limitation of Liability.
Site and Content Disclaimer. THE SITE AND/OR THE CONTENT ARE NOT PROMISED OR GUARANTEED TO BE CORRECT, CURRENT OR COMPLETE, AND THEY MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL ERRORS. BLELLO MAKES NO REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF ANY OF THE CONTENT OR ANY OTHER MATERIALS OR INFORMATION DISPLAYED, DISTRIBUTED OR MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, INCLUDING STATEMENTS, REPRESENTATIONS OR OPINIONS EXPRESSED BY USERS IN THEIR SUBMISSIONS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH CONTENT, MATERIALS OR INFORMATION WILL BE AT YOUR SOLE RISK. BLELLO WILL NOT BE RESPONSIBLE FOR ANY LOSS, HOWEVER ARISING, FROM USE OF, OR RELIANCE ON ANY SUCH CONTENT, MATERIALS OR INFORMATION. YOU ACKNOWLEDGE AND ACCEPT THAT BLELLO DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE AND OPERATION OF THE SITE MAY BE INTERFERED WITH OR ADVERSELY AFFECTED BY NUMEROUS FACTORS OR CIRCUMSTANCES OUTSIDE OF OUR CONTROL.
Disclaimer of Warranties. EXCEPT AS TO ANY EXPRESS PRODUCT WARRANTIES MADE, THE SITE AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, BLELLO HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITATION, BLELLO MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT OR ANY OTHER MATERIALS OR INFORMATION DISPLAYED, DISTRIBUTED OR MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, ABOUT THE RESULTS TO BE OBTAINED FROM USING THE SAME. BLELLO DOES NOT WARRANT THAT THE SITE, THE CONTENT OR ANY OTHER MATERIALS OR INFORMATION DISPLAYED, DISTRIBUTED OR MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE ERROR FREE, OR WILL OPERATE WITHOUT INTERRUPTIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU AND IN SUCH STATES OUR LIABILITY WILL BE DEEMED LIMITED TO THE EXTENT PERMITTED BY LAW. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENTPERMITTED BY LAW, IN NO EVENT WILL BLELLO OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, INVESTORS, EMPLOYEES, AGENTS, LICENSORS, CONTRACTORS, VENDORS AND SERVICE PROVIDERS, BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, OR ENHANCED, PUNITIVE OR EXEMPLARY DAMAGES, RESULTING FROM OR RELATING TO, THE SITE, THE CONTENT OR ANY OTHER MATERIALS OR INFORMATION DISPLAYED, DISTRIBUTED OR MADE AVAILABLE ON OR THROUGH THE SITE, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SITE, ANY CHANGES TO OR INACCESSIBILITY OF THE SITE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY SUBMISSIONS BY USERS, OR ANY CONTENT OR INFORMATION FROM A THIRD PARTY ACCESSED ON OR THROUGH THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLELLO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND IN SUCH STATES OUR LIABILITY WILL BE DEEMED LIMITED TO THE EXTENT PERMITTED BY LAW.
12. Links and Third Party Web Sites.
13. Termination/Suspension; Botnets.
Blello reserves the right, in its sole discretion, to terminate, change, suspend or discontinue any aspect of the Site or the Content at any time and/or to restrict, suspend or terminate your access to the Site and/or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice and without liability to you or anyone or any third party. Without in any way limiting the foregoing, Blello retains the right, at our sole discretion, to terminate any accounts involved with botnets and related activities. If any hostnames are used as command and control points for botnets, Blello reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at our discretion.
14. Compliance With Laws and Export Control.
You assume all knowledge of applicable law and are responsible for compliance with any such laws. You may not use the Site or Content in any way that violates applicable state, federal, or international laws, regulations or other government requirements. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.
You acknowledge and agree that the Site shall not be used, and none of the Content or underlying information, software or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
Blello and its licensors make no representation that the Site or the Content made available on or accessed through the Site are appropriate or available for downloading or use in other locations outside of the United States, and access to them from territories where their contents are illegal is prohibited. Access to the Site and/or the Content made available on or accessed through the Site may not be legal by certain persons or in certain countries. If you access the Site from outside of the United States you do so at your own risk and are responsible for compliance with all applicable laws, including without limitation export and import regulations and intellectual property laws of the Unites States and other countries. Any diversion of the Site and/or any Content obtained from or through the Site contrary to the laws of the United States or any other jurisdiction is prohibited.
II. AFFILIATE PROGRAM
Anyone may apply to be a part of Blello’s Affiliate Program. If your application is accepted, Blello will provide you with a unique coupon code (“Coupon Code”) to share on your website and/or social media platforms (collectively, “Platforms”). By participating in the Affiliate Program, you agree to the following terms and conditions:
You will receive a commission whenever someone uses your Coupon Code to purchase a mattress, but only if that person does not return the mattress, whether as part of Blello’s 100-Night Risk-Free Trial Program (“100-Night Trial”) or otherwise. Assuming you have provided Blello with a completed Form W-9, Blello will send such payment to you within thirty (30) nights of the end of the relevant 100-Night Trial. You acknowledge and agree that the foregoing payment represents your entire compensation with respect to posting the Coupon Code on your Platforms (each, an “Advertisement”), and that Blello is not obliged to provide you with any additional compensation or expense reimbursement. You are responsible for all taxes arising out of or related to compensation you receive as part of the Affiliate Program. You agree to indemnify and hold harmless Blello from and against any and all claims arising out of your failure to pay required taxes.
2. Limited License; Artwork.
Blello will grant to you the right to use Blello’s trademark, tradename, service mark, domain name, and any visual representations thereof (collectively, the “Blello Marks”) solely for the purpose of carrying out your duties under this Affiliate Program. Your rights shall be royalty free, non-transferable, and non-exclusive. Any unauthorized use of the Blello Marks shall constitute a material breach of the terms and conditions of the Affiliate Program and an infringement of Blello’s rights in and to the Blello Marks. Blello may provide you with digital renditions of the Blello Marks in a format or formats specified by Blello, in Blello’s sole discretion. You agree that you will not (1) alter any of the Blello Marks in any way (other than to resize them), or (2) display the Blello Marks without the proprietary rights notices specified by Blello. You shall ensure that your vendors who prepare advertising copy, if any, comply with Blello’s corporate graphics standards and your other obligations relating to the use of the Blello Marks. You acknowledge and agree that (a) Blello owns the Blello Marks and that you shall in no way contest or deny the validity of, or the right or title of Blello in or to, the Blello Marks, and (b) you have no right or permission to use the Blello Marks for any purpose other than as expressly stated herein. You agree that you shall not utilize the Blello Marks in any manner that would diminish their value or that otherwise harms the reputation of Blello.
3. Approval Process.
Prior to publication or distribution, you agree to submit to Blello for approval any and all layouts, artwork, photographs, and proofs of copy prepared by or for your use on the Platforms which refer to Blello or include any of the Blello Marks. You further agree that no changes will be made to such materials after approval by Blello unless such changes are approved by Blello in writing.
4. Representations and Warranties.
You represent and warrant that you will comply with all applicable laws, rules, and regulations while participating in the Affiliate Program, including but not limited to the Federal Trade Commission’s “Guides Concerning the Use of Endorsements and Testimonials”, which can be found at http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf (“FTC Endorsement Guides”). In accordance with the FTC Endorsement Guides, you hereby agree not to speak about or refer to Blello’s goods, directly or indirectly, without disclosing that Blello paid or will pay for the Advertisement, including but not limited to when blogging or speaking about Blello or Blello’s goods on your Platforms or if asked to speak in an editorial or expert capacity (including through live appearances or through any media) in any situation in which it is not obvious that you are acting on behalf of Blello. Your statements will reflect your honest views and personal experiences with Blello and/or its goods. The form of any such disclosure may be mutually agreed upon by you and Blello, but, at a minimum, it must appear clearly and conspicuously and in close proximity to any statements you make about Blello.
Unless specifically authorized by Blello in writing, you may not transmit any unsolicited messages (whether through email, SMS, social media or any other electronic medium) to any recipient from whom you have not received prior demonstrable consent or in a manner that violates any law or obligation regarding the transmission of email messages. You shall ensure compliance with the CAN-SPAM Act of 2003.
You shall indemnify, hold harmless, and defend Blello from and against any and all claims, demands, proceedings, suits, and actions, and any related liabilities, obligations, losses, damages, judgments, settlements, fees, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”) arising out of or relating to: (i) your breach of any of your representations and warranties set forth in these terms and conditions, including the failure to abide by the FTC Endorsement Guides; (ii) your breach of any other obligations under these terms and conditions; (iii) misuse or misappropriation of the Blello Marks; or (iv) any negligence or willful misconduct by you or your employee or agent, regardless of whether such Claim arises in part from the negligence of Blello. Blello, at its sole option, may join in the defense and settlement of any Claim and employ counsel at its own expense. You may not settle any Claim without Blello’s written consent, unless such settlement (a) includes a release of all covered claims pending against Blello, (b) contains no admission of liability or wrongdoing by Blello, and (c) imposes no obligations upon Blello other than an obligation to cease use of any infringing item.
6. Limitation of Liability.
In no event shall Blello be liable to you or a third party for any special, indirect, incidental, punitive, or consequential damages, including but not limited to lost profits, whether arising in contract, tort or otherwise, even if Blello was advised of the possibility of such damages. Further, in no event shall Blello’s liability to you or a third party for any claim related to Blello’s goods or these terms and conditions exceed the sum of the payments made to you by Blello under these terms and conditions in the prior twelve (12) months.
Any and all claims and disputes arising from or relating to the Affiliate Program or these terms and conditions shall be subject to binding arbitration. Such arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. The arbitration shall be conducted by a single arbitrator, who shall be selected by the Parties, at the AAA office in Boston, Massachusetts. In the event that the Parties cannot reach agreement on a single arbitrator, then the arbitrator shall be selected in accordance with AAA rules. The arbitrator may award declaratory or injunctive relief only to the extent required to satisfy the claim. All arbitration proceedings will be closed to the public and confidential and all related records will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The decision and the arbitrator’s award will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator’s award will be final and binding on the Parties, and judgment thereon may be entered in any court of competent jurisdiction.
You acknowledge and agree that you and Blello are independent contractors of one another, and that participation in the Affiliate Program shall not amount to any relationship of agency, partnership, or joint venture between you and Blello.
The terms and conditions of the Affiliate Program shall be governed, construed, interpreted and enforced in accordance with the laws of the Commonwealth of Massachusetts, and the federal and state courts located in this state shall be the exclusive forum for any claims and actions not subject to arbitration.
The waiver of a breach or default under these terms and conditions shall not be interpreted to constitute waiver of any subsequent breach or default, and shall not act to amend or negate the rights of the parties.
In the event that any provision of these terms and conditions is declared invalid by any tribunal or law, the remainder of the provisions shall not be affected thereby, and each term and provision not declared invalid or unenforceable shall be valid and shall be enforced to the fullest extent permitted by law.
Last Revised: April 9th, 2018