Terms & Conditions

PLEASE READ THESE TERMS OF USE (THIS “AGREEMENT” OR THE “TERMS OF USE”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SLEEPY JONES, LLC (“SLEEPY JONES” OR THE “COMPANY”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE AT www.sleepyjones.com, ALL OTHER SITES OWNED AND OPERATED BY SLEEPY JONES THAT REDIRECT TO www.sleepyjones.com , AND ALL SUBDOMAINS (COLLECTIVELY, THE “SITE”), AND THE SERVICE AND BUSINESS OWNED AND OPERATED BY THE COMPANY AND CONDUCTED ON THE SITE (THE “SERVICE”). BY USING THE SITE IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, VISITING OR BROWSING THE SITE OR PURCHASING PRODUCTS FROM THE SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT (INCLUDING THE PRIVACY POLICY), THEN YOU SHOULD NOT USE THE SITE. BY USING AND ACCESSING THE SITE (OTHER THAN TO REVIEW THIS AGREEMENT), YOU AGREE TO BE BOUND BY THIS AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS BELOW.

I. Acceptance of Terms

The Service is offered subject to acceptance of all of the terms and conditions contained in these Terms of Use, including the Privacy Policy available at www.sleepyjones.com/pages/privacy, and all other operating rules, policies, and procedures that may be published on the Site by the Company, which are incorporated by reference and may be updated by the Company without notice to you. In addition, some Services offered through the Site may be subject to additional terms and conditions adopted by the Company. Your use of those Services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference.

The Site is designed for and intended for use by adults. If you are under 18, you may use this Site only with involvement of a parent or guardian. If you are a parent or legal guardian, you must monitor and supervise the use of the Site by children, minors and others under your care. You agree to be responsible for their use of this website. We do not knowingly collect personally identifiable information from children under 13. If a parent or guardian becomes aware that his or her child has provided us with Personal Information without their consent, he or she should contact us at help@sleepyjones.com with “Privacy” as the subject line of the email. If we become aware that a child under 13 has provided us with Personal Information, we will delete such information from our files. The Company may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time.

 

II. Modification of Terms of Use

The Company reserves the right, in its sole discretion, to modify or replace these Terms of Use, or change, suspend, or discontinue the Site (including, but not limited to, the availability of any feature, database, or content) at any time for any reason and without prior notice. The Company may also impose limits on certain features and services or restrict your access to parts or all of the Site without notice or liability. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Site following the posting of any changes to the Terms of Use constitutes acceptance of those changes.

 

III. Ownership of Site and Service

You agree that Sleepy Jones owns and shall own all right, title and interest, throughout the world, in and to the Site and Service, and all copyrights, trade secrets, trademarks, service marks, trade dress rights, patent and invention rights, and other intellectual property rights associated therewith. The software that makes up the Site is copyrighted and protected under the United States copyright laws as well as international treaty provisions the United States has entered into as well as by valuable trade secret rights of Sleepy Jones. You further acknowledge and agree that nothing in this Agreement and no use of the Site shall cause to vest or be construed to vest in you any right, title or interest in or to the Site other than the express right to use the Site solely in accordance with the terms and conditions of this Agreement. Any rights not expressly granted herein are reserved to Sleepy Jones.

 

IV. Registration

You may view the Site without registering, but as a condition of using certain aspects of the Service, you may be required to register with the Company and select a password and/or screen name (“User ID”). If you open an account, register, purchase products or provide any information to the Company, you agree to provide accurate, complete, and updated information as requested. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your account. You shall not use a User ID or password that (i) is the name of another person, with the intent to impersonate that person; (ii) is subject to any rights of another person, without appropriate authorization; or (iii) is otherwise offensive, vulgar, or obscene. The Company reserves the right in its sole discretion to refuse registration of or cancel a User ID or password. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password for the Site. You will immediately notify the Company in writing of any unauthorized use of your account, or other known account-related security breach. By providing Sleepy Jones your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, including changes to features of the Site, special offers, and confirmations and information regarding purchases.

 

V. Customer Service

A. Orders. When you are shopping at the Site and add an item, it is saved in your cart. The cart holds products you wish to purchase while you shop, the same way you use a shopping bag in a retail store. Items you place in your cart will remain there until they are purchased or removed. The Company reserves the right to remove items that remain in your cart longer than 7 days. Once you are ready to purchase the items in your cart, simply follow the instructions on the Site. After you complete the checkout process, the receipt page provides you with your order number and information about the order. Print this receipt and save the order information for your records. You will need this information for all references to your order. Your receipt of an e-mail order confirmation does not constitute Sleepy Jones’ acceptance of your order. Without prior notification, Sleepy Jones maintains the right to limit the product order quantity and the right to refuse service to any customer for any reason or no reason at all.

B. Payment. Sleepy Jones accepts Visa, MasterCard, Discover and American Express credit cards, as well as Sleepy Jones gift cards. For your security, your billing name and address must match that of the credit card used for payment. Applicable sales tax will be charged for orders shipped to addresses in states that charge sales tax. We do not charge sales tax on the purchase of gift cards. However, items paid for with gift cards will be taxed if shipped to addresses in states that charge sales tax. In certain situations, information verification may be required prior to the acceptance of your order. No obligation to provide services or products exists between Sleepy Jones and you until Sleepy Jones obtains authorization to charge your credit card, and the charge is accepted and validated by your credit card company.

C. Cancellations. Once you place an order you will not be able to cancel the order. However, you may return the items purchase as provided below. The Company may on occasion need to cancel all or part of an order, for reasons that my include (i) item(s) are not available; (ii) difficulty in processing payment information; (iii) we cannot ship to address provided; and (iv) a duplicate order was placed. If your order is cancelled, you will receive an important notice regarding your order via email which will explain the reason for the cancellation. You will not be billed for any cancelled items.

D. Returns. Returns on merchandise will be accepted within 30 days of the date you received the merchandise. Gift cards cannot be returned. Sale merchandise is final sale and cannot be returned. Please refer to your packing slip for specific return information. Products must be unwashed, unworn, in good condition with original tags and labels, in original boxes (whenever possible), and with all accessories to ensure a full refund. Mail your returned item(s) using the pre-paid return label included with your order. Returns will include free shipping if you use the pre-paid label. You can expect a refund in the same form of payment originally used for purchase within 30 days of our receiving your returned product. Your refund will include the cost of the item, plus any applicable sales tax. We cannot refund your original shipping costs. Insurance is taken care of when using the provided label. If you choose to return the item in your own packaging using another shipping method, please be sure to use the address listed on our return label. Unfortunately, we cannot accept exchanges. In order to effect an exchange of goods, you must return the original item for a refund as described above, and purchase the new item from the Site as a separate transaction.

E. Gift Cards. Sleepy Jones gift cards are redeemable on the Site. They cannot be redeemed at department stores or specialty stores. Gift cards can be ordered only in amounts as provided on the Site. Codes are normally activated within 24 hours after you receive them. You cannot purchase a Gift Card with another Gift Card. If the amount of your Gift Card does NOT cover the total purchase amount, you will need to pay for the remainder of the purchase with a valid form of payment. If the amount of your Gift Card is for MORE than the total order amount, the balance amount will be stored on your Gift Card account for future use. Gift Cards are non-transferable, non-refundable and are not redeemable for cash. California customers please note gift cards valued at less than $10 may be redeemed for cash. We cannot replace lost or stolen Gift Cards. No sales tax is charged when buying Gift Cards; however, purchases paid for with Gift Cards will be charged applicable sales tax. When making a purchase online at the Site, only one Gift Card code per order will be accepted. If you have any additional questions, please contact Customer Service.

F. Promotions. From time to time, Sleepy Jones may offer promotions and/or co-sponsor contests, sweepstakes, and games on the Site. Each of these activities shall be governed by specific rules accessible from the pages of the Site offering the promotion.

G. Risk of Loss. All products purchased from the Site are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.

H. International Duties & Taxes

The goods will be imported on behalf of the consignee/ebuyer. The consignee authorizes the (name of eTailer/supplier) to import the goods on his behalf. Further, the consignee/buyer agrees that (name of the eTailer/supplier) may delegate the obligation to import the goods on his behalf to a subcontractor (e.g. customs broker). The consignee will pay the taxes & duties in addition to the purchase price of the goods.

VI. General Rules and Conduct.

As a condition of use, you promise not to use the Site for any purpose that is prohibited by the Terms of Use or law. The Site is provided only for your own personal, non-commercial use. You are responsible for all of your activity in connection with the Site. You may have the opportunity to post, transmit or otherwise make available information, opinions, ideas, images or other content on the Site. You shall not, and shall not permit any third party using your account to, take any action, or submit content, that:

  • infringes any patent, trademark, service mark, trade secret, copyright, right of publicity, privacy right or other right of any other person or entity, or violates any applicable law or contract;
  • you know is false, misleading, or inaccurate;
  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another’s privacy;
  • constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters;
  • contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of the Company or any third party;
  • impersonates any person or entity, including any employee or representative of the Company.

Additionally, you shall not: (i) take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on the Company’s or its third-party providers’ infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) use any network monitoring or discovery software to determine the Site’s architecture, or to extract information about usage or users; (iv) harvest or collect User IDs or any Personal Information (as that term is defined in the Privacy Policy) about our Users; (v) bypass any measures the Company may use to prevent or restrict access to the Service (or other accounts, computer systems, or networks connected to the Service); (vi) use any Company-owned mark or product name as a meta-tag or other ‘hidden text’ for search engines in a manner that does not inure to the benefit of Sleepy Jones; (vii) run Maillist, Listserv, or any form of auto-responder or “spam” on the Service; or (viii) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site.

You shall not directly or indirectly: (i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction and/or to the extent any such source code is open source; (ii) modify, translate, or otherwise create derivative works of any part of the Service; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.

The Company does not guarantee that any content or services will be made available through the Site. The Company has no obligation to monitor the Site. The Company reserves the right to, at any time, for any reason, and without notice, to remove or block any content, including, but not limited to, any content you may submit, to the Site. Sleepy Jones reserves the right not to comment on the reasons for any of these actions.

If you see anything on the Site that you believe violates our Terms of Use, including but not limited to content that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another’s privacy or that constitutes spam, we encourage you to report it to the Company. Please note, however, that reporting such content does not guarantee that it will be removed from the Site or that the Company will take any other actions. The Company may act in its sole discretion with respect to any such reports.

 

VII. Third-Party Sites and Mobile Services

The Site may permit you to link to other websites or resources on the internet, and other websites or resources may contain links to the Site. When you access third-party websites, you do so at your own risk. Those other websites are not under the Company’s control, and you acknowledge that the Company is not liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of those other websites or resources. The inclusion on another website of any link to the Site does not imply endorsement by or affiliation with the Company. You further acknowledge and agree that the Company shall not be liable for any damage related to the use of any content, goods, or services available through any third-party website or resource.

You may enable various online services, such as social networking sites, to be directly integrated into your use of the Site. To take advantage of these features, we may ask you to register for or log into the services on the websites of their respective providers. By enabling third party services within the Site, you are allowing us to pass your log-in information to these service providers for this purpose. For more information about the implications of activating these third party services and Sleepy Jones’s use, storage and disclosure of information related to you and your use of such services within the Site, please see our Privacy Policy. However, please remember that the manner in which third party services use, store and disclose your information is governed solely by the policies of such third parties, and Sleepy Jones will have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within or through the Site.

The Site may include certain services that are available via a mobile device, including (i) the ability to browse the Site from a mobile device and (ii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the ”Mobile Services“). To the extent you access the Site or Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you understand that certain information about your usage of the Mobile Services may be communicated to us.

 

VIII. Content and License

All trademarks, service marks and trade names (collectively the “Marks”) that appear on the Site are proprietary to Sleepy Jones, or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without the prior written consent of Sleepy Jones, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Site.

The Company grants you a limited, non-exclusive, non-sublicensable and non-transferable license to use the Site, solely for personal, non-commercial use. Use, reproduction, modification, distribution, or storage of any content on the Site for other than personal, non-commercial use is prohibited without prior written permission from the Company, or from the copyright or Mark holder. You shall not sell, license, rent, or otherwise use or exploit any content on the Site for commercial use or in any way that violates any third-party right.

The Company will not have any ownership rights over the content or information you submit to the Site. However, you grant to the Company the worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable right to (and to allow others acting on its behalf to) (i) use, edit, modify, prepare derivative works of, reproduce, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute, and otherwise fully exploit any content you submit in connection with (a) the Site, (b) the Service, (C) the Company’s (and its successors’ and assigns’) businesses, (d) promoting, marketing, and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third-party websites); (ii) take whatever other action is required to perform and market the Service; and (iii) use and publish, and permit others to use and publish, the content you submit, in connection with the provision or marketing of the Service. The foregoing license grant to the Company does not affect your other ownership or license rights in any content you submit to the Site, including the right to grant additional licenses to your content. You are publishing any content you submit, and you may be identified publicly by your name or user ID in association with your content.

 

IX. Privacy and Security

We care about the privacy of our customers and users of the Site. Please review our Privacy Policy at www.sleepyjones.com/pages/privacy.

We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

 

X. Copyright Notifications

Sleepy Jones will remove infringing materials in accordance with the DMCA if properly notified that content on the Site infringes copyright. If you believe that your work has been copied in a way that constitutes copyright infringement, please notify Sleepy Jones’ Copyright Agent in writing. Your notice must contain the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • a description of the copyrighted work that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the Site, sufficient for Sleepy Jones to locate the material;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  • a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.

If you fail to comply with these notice requirements, your notification may not be valid.

Our designated copyright agent for notice of alleged copyright infringement is:

Sleepy Jones, Inc.
Attn: Copyright Agent
40 Great Jones
New York, NY 10012
Email: copyrightagent@sleepyjones.com

 

XI. Termination

The Company may terminate your access to the Site, without cause or notice, which may result in the forfeiture and destruction of all information associated with your account. If you wish to terminate your account, you may do so by following the instructions on the Site. All provisions of the Terms of Use that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

 

XII. Warranty Disclaimer

THE SITE AND ALL CONTENT ON THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE COMPANY, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS, AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SITE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SITE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SITE IS SOLELY AT YOUR OWN RISK. SOME STATES OR COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Electronic Communications Privacy Act Notice (18 USC §2701-2711): THE COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEBSITE LINKED TO THE SITE. The Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on the Company’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Site.

 

XIII. Indemnification

You shall defend, indemnify, and hold harmless the Company, its affiliates, and each of its and its affiliates’ employees, contractors, directors, suppliers, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees and costs, that arise from or relate to your use or misuse of, or access to, the Site, or from and content you submit to the Site, any violation of the Terms of Use, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with the Company in asserting any available defenses.

 

XIV. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SLEEPY JONES, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (I) ERRORS, MISTAKES, OR INACCURACIES WITH REGARD TO THE CONTENT CONTAINED ON THE SITE;(II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITE OR SLEEPY JONES’ SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (IV) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED BY YOU AS A RESULT OF YOUR USE OF OR RELIANCE ON THE CONTENT CONTAINED ON THE SITE, WHETHER BASED ON TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SLEEPY JONES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

XV. Electronic Delivery, Notice Policy, and Your Consent

By using the Site, you consent to receive from Sleepy Jones all communications including notices, agreements, legally required disclosures, or other information in connection with the Site (collectively, “Contract Notices”) electronically. Sleepy Jones may provide the electronic Contract Notices by posting them on the Site. If you desire to withdraw your consent to receive Contract Notices electronically, you must discontinue your use of the Site.

 

XVI. Governing Law

These Terms of Service (and any further rules, policies, or guidelines incorporated by reference) shall be governed by and construed in accordance with the laws of the State of New York and the United States, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods. You agree that the Company and its Services are deemed a passive website that does not give rise to personal jurisdiction over Sleepy Jones or its parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of New York. You agree that any action at law or in equity arising out of or relating to these terms, or your use or non-use of the Site, shall be filed only in the state or federal courts located in New York County in the State of New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You hereby irrevocably waive any right you may have to trial by jury in any dispute, action, or proceeding.

 

XVII. Integration and Severability

These Terms of Use and other referenced material are the entire agreement between you and the Company with respect to the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and the Company with respect to the Site and govern the future relationship. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

 

XVIII. Miscellaneous

The Company shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond the Company’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation. The Terms of Use are personal to you, and are not assignable, transferable, or sublicensable by you except with the Company’s prior written consent. The Company may assign, transfer, or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Use and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Use, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.