Last Updated: May 16, 2016
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING THE SAY WEB SITE, BECOMING A SAY MEMBER, MAKING ANY PURCHASES, OR OTHERWISE USING ANY SERVICE AVAILABLE THROUGH THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SAY SITE OR SERVICE.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SAY.COM WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
SAY is an online buying service from Say.com LLC (“Say.com”). These terms and conditions (“Terms”) apply to: (a) your registration to obtain access to the online store (the “Store”); (b) your access to and use of the Say.com Web site located at www.say.com and any related websites, mobile sites and mobile applications which link to these Terms (collectively the "Site"); (c) your purchase of any merchandise from the Site (“Merchandise”); and (d) your use of the buying service and any other services made available thought the Site (collectively the “Service”). These Terms do not alter in any way the terms or conditions of any other agreement you may have with Say.com, or its subsidiaries or affiliates, for products, services or otherwise. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf, and that such entity agrees to indemnify you and Say.com for violations of these Terms.
A. TERMS OF SALE
- Eligibility. You must be 18 years of age or older to register for the Service, make a purchase, or otherwise use the Service. If you register for the Service or make a purchase, you are representing and warrantying to use that you are 18 or over. Purchases must be solely for personal use or gifts and not for resale or commercial purposes. Company reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
- Registration. To obtain access to the Store and make purchases you must first register on the Site to request access by providing your e-mail or connecting using Facebook Connect.
- Your Account. When you make your first purchase from the Site, an account will be created for you as part of the checkout process. You are responsible for maintaining the confidentiality of your password and for restricting access to your password, and you agree to accept responsibility for all activities that occur under your account.
- Acceptance of Order. Your placement of an order does not necessarily assure that we will accept your order. Acceptance occurs when we send an order confirmation. We reserve the right to refuse any order in our sole discretion. In addition, before accepting your order, we may require additional information if you have not provided all of the information required by us to complete your order.
- Shipping Terms and Policies. We endeavor to ship all orders for in stock items within 2 business days. Our standard business hours are Monday through Friday 9 a.m. to 5 p.m. Pacific Standard Time. Standard shipping is typically via USPS First-class Mail and you should allow at least 3-5 business days for standard delivery once an order has been shipped. We reserve the right to substitute another carrier of equal or lesser cost to deliver your order. If expedited shipping is required, please select that as your shipping choice, and you will be charged the applicable shipping fee. Where free shipping does not apply, the shipping charge, if any, shown during the checkout process is subject to verification. If the actual shipping charge will be more than the amount shown at check out, we will contact you with the correct shipping costs before shipping your order, and you will have an opportunity to cancel your order. Title to products passes from Say.com to you upon shipment, and we are not responsible for any shipping delays or problems once the product has been shipped.
- Return and Exchange Policies. WE DO NOT ACCEPT ANY RETURNS OR EXCHANGES ON MERCHANDISE OR PROVIDE ANY REFUNDS UNLESS THE MERCHANDISE IS CLEARLY DEFECTIVE OR WE HAVE SHIPPED THE WRONG MERCHANDISE. We will gladly accept returns for Merchandise we determine is clearly defective or mis-shipped, provided that the request for return or replacement is made within ten days of receipt and the defective merchandise is accompanied by the original packaging and a copy of the packing slip. We may ask you to submit photographic evidence of the defect or damage in lieu of returning the merchandise to use. Once we verify that the Merchandise is defective or that we shipped the wrong Merchandise, we will either replace the item or provide you with a refund, at our option. EXCEPT AS STATED ABOVE, ALL MERCHANDISE IS PROVIDED ON AN "AS IS," “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SAY.COM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Product Availability and Pricing. Our Merchandise is available in limited quantities. We and our suppliers continually upgrade and revise product offerings to provide you with new products and services. We may revise or discontinue products at any time without prior notice to customers, and products may become unavailable to customers even after an order is placed. All prices are subject to change without notice prior to receiving confirmation of your order.
- Product Descriptions; Pricing; Errors. Say.com attempts to be as accurate as possible and eliminate errors on this Site, including errors in pricing or descriptions. However, we do not warrant that product descriptions, photographs, pricing or other content of this site is accurate, complete, reliable, current, or error-free. If a product offered by Say.com is not as described or pictured, your sole remedy is to return it in unused condition for a refund or replacement (as determined by Say.com). In the event of an error, whether on the Site, in an order confirmation, in processing an order or otherwise, we reserve the right to correct such error and charge the correct price or cancel the order, and your sole remedy in the event of such error is to cancel your order.
- Copyright and Limited License. Unless otherwise indicated in the Site, the Site and all content and other materials on the Site, including, without limitation, the Say.com logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the "Site Materials") are the proprietary property of Say.com or its licensors or users and are protected by U.S. and international copyright laws. Subject to the terms and conditions set forth in these Terms, you are granted a limited, non-sublicensable license to access and use the Site and the Service for your informational, non-commercial and personal use only Such license does not include, and you agree not to engage in: (a) any resale or commercial use of the Site, the Service or the Site Materials therein (including any commercial resale of the Merchandise or other commercial use of the Site or the Service); (b) the collection and use of any product listings, pictures or descriptions; (c) the distribution, public performance or public display of any Site Materials; (d) modifying or otherwise making any derivative uses of the Site and the Site Materials, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Site, the Service, the Site Materials, or any information contained therein, except as expressly permitted on the Site; (g) any action that will interfere with the operation of the Site or the Service or the use and enjoyment therefor by any third party; or (h) any use of the Site, the Service or the Site Materials other than for its intended purpose. Any use of the Site, the Service, or the Site Materials other than as specifically authorized herein, without the prior written permission of Say.com, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
- Trademarks. SAY, SAY KIDS, the Say.com logos and any other Say.com product or service name or slogan contained in the Site or use in connection with the Service are trademarks of Say.com, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Say.com or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "Say.com" or any other name, trademark or product or service name of Say.com without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Say.com and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
Hyperlinks. You are granted a limited, non-exclusive right to create a text hyperlink to the Site for noncommercial purposes, provided such link does not portray Say.com or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Say.com logo or other proprietary graphic of Say.com to link to this Site without the express written permission of Say.com. Further, you may not use, frame or utilize framing techniques to enclose any Say.com trademark, logo or other proprietary information, including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without Say.com's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Say.com or any third party.
Say.com makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site, or Web sites linking to the Site. Such sites are not under the control of Say.com and Say.com is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Say.com provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Say.com of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
- Third Party Content. Say.com may provide third party content on the Site and may provide links to Web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. Say.com does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Say.com is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
- Advertisements and Promotions; Third-Party Products and Services. Say.com may run advertisements and promotions from third parties on the Site or may otherwise provide information about or links to third-party products or services on the Site. Say.com does not endorse or make any representations or warranties regarding any third party products, services, promotions or vendors. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Say.com is not responsible or liable in any manner for any third party products or services, for any loss or damage of any sort incurred as the result of any products, services, dealings or promotions or as the result of the presence of such non-Say.com advertisers or third party information on the Site.
- Submissions. You acknowledge and agree that any questions, comments, suggestions, feedback, ideas, plans, notes, drawings, original or creative materials or other information, regarding the Site, the Service, Say.com or Say.com's products or services that are provided by you in the form of email or other submissions to Say.com, or any postings on the Site, are non-confidential and shall become the sole property of Say.com. Say.com shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Registration Data; Account Security. In consideration of your use of the Site and the Service, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Say.com, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to Say.com.
- Indemnification. You agree to defend, indemnify and hold harmless Say.com, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to your conduct, your violation of these Terms or your violation of the rights of any third party.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THESE TERMS, THE SITE, THE SITE MATERIALS, THE SERVICE AND ALL MERCHANDISE PROVIDED ON OR IN CONNECTION THEREWITH ARE PROVIDED ON AN "AS IS" “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SAY.COM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE MERCHANDISE, THE SITE, THE SERVICE AND THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. SAY.COM DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THE SITE OR THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
SAY.COM IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHILE SAY.COM ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE AND THE SERVICES SAFE, SAY.COM CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Say.com reserves the right to change any and all content contained in the Site and to modify, suspend or discontinue the Site or any Service offered through the Site or any features or functionality of the Site or the Service at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Say.com.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL SAY.COM, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SITE, THE SERVICE, THE SITE MATERIALS, OR THE MERCHANDISE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM SAY.COM, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SAY.COM'S RECORDS, PROGRAMS OR SERVICES; (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SAY.COM, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICE OR TO THESE TERMS EXCEED ANY MEMBERSHIP FEES YOU PAY, IF ANY, TO SAY.COM FOR ACCESS TO OR USE OF THE SITE AND THE SERVICE; (C) . IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SAY.COM, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO ANY MERCHANDISE EXCEED THE AMOUNT PAID TO SAY.COM FOR SUCH MERCHANDISE.
SOME STATES 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.
- Applicable Law and Venue. These Terms and your use of the Site shall be governed by and construed in accordance with the laws of the State of Washington, applicable to agreements made and to be entirely performed within the State of Washington, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms.
- Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH SAY.COM, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Applicability of Arbitration Agreement. All claims and disputes arising in connection with these Terms, the Site, the Merchandise, or the Service that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms set forth below (the “Arbitration Agreement”), except that neither of us are required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. This Arbitration Agreement applies to you and Say.com, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is ten thousand U.S. dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Say.com, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Say.com.
- Waiver of Jury Trial. YOU AND SAY.COM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Say.com in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SAY.COM WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding any other provision in these Terms, in the event that this subparagraph is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead all claims and disputes shall be resolved in a court located in King County Washington.
- Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. Notwithstanding the foregoing, no party shall be prevented from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Small Claims Court. Notwithstanding the foregoing, either you or Say.com may bring an individual action in small claims court.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in King County, Washington for such purpose.
- Survival. This Arbitration Agreement will survive the termination of your relationship with Say.com.
- Termination; Survival of Terms. Notwithstanding any of these Terms, Say.com reserves the right, without notice and in its sole discretion, to terminate your account, and your license to use the Site and the Service, and to block or prevent future your access to and use of the Site and the Service. You acknowledge that the terms and conditions set forth in these Terms will survive any such termination.
- Severability. If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
- Questions & Contact Information. Questions or comments about the Site may be directed to Say.com at email@example.com.