Terms of Use
Last updated: June 13, 2024
This website, FloydHome.com (including related domains and mobile sites, the “Site”), is owned and operated by Floyd, Inc. (“Floyd,” “We,” “Our,” and “Us”). The following terms governs your use of services and purchase of products from the Site. By accessing, browsing, or otherwise using the Site, you agree to be bound by these Terms of Service set forth below (the “Terms”). If you do not agree to accept and abide by these Terms, you should not access or use the Site.
These Terms, the Privacy Policy and all other documents referenced herein govern the relationship between you, the Site visitor (“you” or “your”) and Floyd with respect to your use of this Site. You agree that the agreement formed by these Terms is like any written negotiated agreement signed by you, and you agree to be bound by, and fully comply with, its terms. You represent and warrant that you have all necessary right, power and authority to enter into this agreement and to perform and otherwise discharge all of your obligations hereunder, whether on behalf of yourself or any entity that you represent.
IMPORTANT NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS CONTAIN A CLASS ACTION WAIVER AND JURY TRIAL WAIVER AND REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS IN CERTAIN JURISDICTIONS TO RESOLVE CLAIMS. PLEASE SEE THE DISPUTE RESOLUTION SECTION (INCLUDING SUBSECTIONS) FOR COMPLETE DETAILS AND REVIEW CAREFULLY. PLEASE READ THESE ENTIRE TERMS CAREFULLY BEFORE USING THIS WEBSITE. These Terms incorporate by reference the Privacy Policy, and any capitalized terms in that agreement shall have the same meaning here.
Jurisdiction
If you are residing in a jurisdiction that restricts the ability to enter into agreements such as set out in these Terms, you may not enter into this agreement or use this Site.
Furthermore, if you are residing in a jurisdiction where it is forbidden by law to participate in the activities or services offered by this Site, you may not enter into this agreement or use this Site. By using this Site, you are explicitly stating that you have verified in your own jurisdiction if your use of this Site is allowed.
We make no—and you acknowledge that we make no—representation that materials on this Site are appropriate or available for use in all locations. Those who choose to access the Site do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
We reserve the right to limit the availability of the Site, materials, or other items described or offered thereon to any person, geographic area, or jurisdiction we so desire, at any time and in our sole discretion, and to limit the quantities of any such services, materials, or other item provided.
Job Applicants
If you submit a resume, job application, or related materials or other information to us, we may use that information to evaluate your qualifications and consider or respond to your inquiry or application. Your submission of a resume, job application, or related information does not in any way require us to review that information or consider you for employment. To view career opportunities or to submit a job application, you may be redirected to an online career portal operated by a third party. We encourage you to review any terms and privacy policies posted on that portal (if applicable).
Personal Use and User Accounts; Site Contents
Other than for the purchase of merchandise from our Site, our Site and the contents of our Site (the “Contents”) are intended for personal, noncommercial use.
All of the information you provide to Floyd or that we collect from you in connection with your use of the Site will be governed by these Terms and our Privacy Policy. You agree at all times to: (i) provide accurate, current and complete information about yourself as prompted by our registration form or otherwise; and (ii) maintain and update your information (including your e-mail address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, We may terminate your account and your ability to use this Site and, in our sole discretion, to report you to the appropriate authorities.
You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in or exploit in any way, in whole or in part, any of the Contents, the Site, or any related software. We may change, move or delete portions of, or may add to our Site or its Contents from time to time (as further described herein), and these Terms cover any subsequent changes or modifications to our Site and/or its Contents.
The Site and its Contents are protected by copyright, trademark, trade dress and other laws, and all worldwide right, title and interest in and to the Site and its Contents are owned by Floyd or its licensors. Floyd, FloydHome.com, The Floyd Leg, and all other trademarks appearing on the Site are trademarks of Floyd or are licensed and/or used with permission. No licenses, express or implied, are granted by Floyd to you under any patent, copyright, trademark, trade secret, or other intellectual property right of Floyd and all such rights are reserved and retained by Floyd. ALL RIGHTS RESERVED. You agree not to display or use such trademarks without Floyd’s express permission.
If you know or suspect that any of the materials on the Site have been used or copied in a way that constitutes copyright infringement, please send notice to our designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:
A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
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;
Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The designated agent for notice of copyright infringement claims may be reached as follows: legal@floydhome.com
The preceding information is provided exclusively for notifying us that your copyrighted material may have been infringed. All other inquiries, such as questions related to items available for purchase on the Site and requests or concerns regarding improper content, will not receive a response through this process.
Internet Software or Computer Viruses
Due to technical difficulties with the Internet, Internet software or transmission problems could produce inaccurate or incomplete copies of information contained on this Site. Due to the ability to share certain content and materials, computer viruses or other destructive programs may also be inadvertently downloaded from this Site.
Floyd shall not be responsible or liable for any software, computer viruses or other destructive, harmful, or disruptive files or programs that may infect or otherwise impact your use of your computer equipment or other property on account of your access to, use of, or browsing on this Site or your downloading of any user materials or other content from this Site. Floyd recommends that you install appropriate anti-virus or other protective software.
User Comments, Feedback, Postcards and Other Submissions; Third-Party Websites
Any and all comments, feedback, postcards, suggestions, ideas, and other submissions disclosed, submitted or offered by you to Floyd on or by this Site or otherwise disclosed, submitted or offered in connection with your use of this Site (collectively, “Comments”) shall be and remain Floyd property. Floyd is not under any obligation (1) to maintain any Comments in confidence; (2) to pay to user any compensation for any Comments; or (3) to respond to any user Comments. By submitting a Comment, you represent and warrant that any Comment you submit does not violate any right of any third party, including copyright, trademark, privacy, patent or other personal or proprietary rights. You further represent and warrant that any Comment you submit to the Site does not contain libelous or otherwise unlawful, abusive or obscene material. You are prohibited from implying that your Comment is in any way sponsored or endorsed by Floyd. You are and shall remain solely responsible for the content of any Comments you submit.
You may not submit or upload Comments that are defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, lewd, offensive, indecent, obscene, pornographic, or otherwise offensive (such Comments, “Offensive Comments”), whether or not such material is protected by law. You agree that you will not use the Site (or any features therein) to publish or disseminate or allow any other person to publish, republish, or disseminate, any Offensive Comments, nor use profanity in any posting to any Site.
You may also expose yourself to liability to Floyd or third parties if, for example, your Comments contain material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation. If you comment about an experience with Floyd or any third party or write defamatory comments through the Site (or repeat, copy, or redistribute the defamatory or inflammatory comments of others), you could also expose yourself to liability.
We may use your Comments in a number of different ways, including publicly displaying and reformatting it. As such, you hereby irrevocably grant us world-wide, non-exclusive, royalty-free, transferable rights to use your Comments for any purpose associated with the operation of the Site and for our internal tracking, reporting, and data analysis purposes, without limit as to time, manner, and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. You also irrevocably grant the users of the Site the right to access your Comments in connection with their use of the Site. Finally, You irrevocably waive, and cause to be waived, against Floyd and its users, any claims and assertions of moral rights or attribution with respect to Comments. By “use” we mean use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of Comments.
We reserve the right to remove, screen, edit, or reinstate your Comments from time to time at our sole discretion and without notice to you. By submitting Comments to Floyd through its suggestion or feedback webpages, via email, or otherwise, you acknowledge and agree that: (a) Floyd may have something similar to the Comments already under consideration or in development; and (b) we have no obligation to retain or provide you with copies of Comments, nor do we guarantee any confidentiality with respect to your Comments.
You understand that Comments and account information may be transferred unencrypted and involve (a) transmissions over various networks, and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You acknowledge that the Site may include access to content created, owned, or controlled by third parties (including you or other members). The Site may also link to third parties’ websites. While we may make these available to you, they are not under our control and we are not responsible for their content, nor do we guarantee their accuracy or availability to you. You may be required to agree to such third parties’ terms and conditions in order to use or access their content or websites. Accordingly, we encourage you to review the terms of use and privacy policies, if any, associated with third-party content or websites.
Site Transactions
We reserve the right to request further identification for credit card processing on any order you place with us. We reserve the right to change and/or refuse any order you enter on the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order; including multiple orders entered by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. In the event we change or cancel an order, we will attempt to notify you by contacting the applicable contact information provided when order was submitted on the Site.
Return Policy
We have a 30-day return policy. Floyd only accepts returns sent back with Floyd-issued labels in Floyd’s original packaging and through Floyd-approved carriers. Under no circumstances will Floyd issue reimbursements for customer-sourced labels or customer-sourced packaging. Similarly, Floyd will not honor returns sent through third-party shipping carriers outside the Floyd network without Floyd’s explicit written consent. Items returned outside of Floyd’s return policy and process are not eligible for a refund.
Please initiate your return by visiting www.floydhome.com/apps/returns. Regular item returns are subject to a 10% restocking fee, and made-to-order items are subject to a 30% processing fee for returns & cancellations to account for the manufacturing and shipping & handling costs incurred. Original shipping and delivery fees are non-refundable. In order to receive a refund or replacement, your order must be returned in its original packaging, including plastic, within 30 days of receiving your Floyd labels, unless Floyd notes, in-writing, that the item is not returnable due to damage or defect. After submitting your return request, we will send you a prepaid shipping label or arrange for your return pick-up (depending on your original shipping method), and once the product is inspected for quality and checked into our warehouse, we will issue your refund (provided that only purchases made from www.floydhome.com within the contiguous US qualify for free return shipping). All packages being returned with a pre-paid return label must move back into transit with the approved carrier within 30 days of receiving the return labels. After the return has reached our facility, please allow for 5-10 business days for the refund to be issued to your account.
Physical and digital gift cards are not eligible for cash returns. For items purchased with a gift card, the amount of the return will be refunded back onto the gift card.
For items shipped outside of Floyd’s return policy, Floyd may, at its discretion and only upon successful confirmation of receipt of the item in acceptable condition, offer a 50% refund for items shipped using non-Floyd issued labels or original Floyd packaging. By agreeing to our terms of service, you agree to Floyd’s return policy and accept additional charges or a possibility of no refund should a return be initiated outside of Floyd’s system.
If you are unable to comply fully with the return policy, or if your return arrives damaged, unfortunately you may not be entitled to a full refund or any refund.
Failed Deliveries, Returned & Missing Packages
If a package(s) are confirmed delivered by the mailing service but the customer cannot locate the package(s), Floyd must be notified within 7 business days of the marked date of delivery for a claim to be submitted. You agree by using the site to purchase a Floyd product that their sole remedy for a missing package is to file a missing package claim with the carrier of record to request reimbursement. You are also free, at their own discretion, to file a claim with their personal property insurance. You agree that Floyd is not liable for missing packages that are successfully delivered. Scheduled deliveries where the customer or customer proxy 18 years of age or older is not home to accept the delivery are subject to a rescheduling fee as determined by the carrier. While in-transit address changes are not guaranteed, when such address changes are possible, the customer acknowledges and accepts applicable change fees. Customers with freight delivery orders agree to schedule their delivery within 14 days of first notice of delivery availability by the carrier or risk cancellation of the order. Canceled orders will be returned to sender and are charged applicable restocking fees.
Prohibited Conduct
You represent and warrant that: you will perform under these Terms in compliance with all applicable laws and regulations; you are not (i) located in a country subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country, or (ii) listed on any U.S. Government list of prohibited or restricted parties; and all information you provide in connection with your access to or use of the Site is true, accurate, and complete to the best of your knowledge and belief.
You may not, and you will not allow any third party to:
Areas of the Site may have different terms of use posted. If there is a conflict between these Terms and terms of use posted for a specific area of the Site, the latter shall have precedence with respect to your use of that area of the Site.
Indemnification
You agree that you remain responsible for the content that you submit or send using the Site. You agree to indemnify, defend and hold harmless Floyd and its affiliates, and their employees, contractors, directors, managers, officers, and representatives, from and against any damages, losses, or costs (including reasonable attorneys’ fees), arising directly or indirectly from, or in connection with any claim, suit, or action relating to: (i) your Comments; (ii) your use of the Site; (iii) your violation or infringement of any right of a third party or any applicable law in connection with the Site; (iv) any property damage or personal injury caused by you; or (v) your breach of these Terms. Floyd reserves, and you grant to us, the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such matter without the prior written consent of Floyd. This indemnification section will survive any termination or expiration of these Terms.
Disclaimer of Warranty; General Conditions
The Site and all content therein, and any products and services offered through the site, are provided on an “as-is” and “as-available” basis, without warranty of any kind. Floyd and its licensors and suppliers expressly disclaim and exclude to the fullest extent permitted by law any and all warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Floyd does not warrant or make any representations of correctness, completeness, accuracy, reliability, availability, support, timeliness, safety, or performance with respect to the use of the Site or its content. Floyd makes no warranty that the Site or the products or services will meet user’s needs or be error free or accurate. Any representation or warranty not expressly contained herein will not be enforceable.
We reserve the right to refuse service and/or access to the Site to anyone at any time.
Floyd shall have no liability for interruptions or omissions in Internet, network or hosting services and does not warrant that the Site or the services which make this Site available or electronic communications sent by Floyd will be available and free from viruses or any other harmful elements.
Any material downloaded or otherwise obtained through the use of this Site is done at your own discretion and risk. You are and will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
Occasionally there may be information on our Site that contains typographical errors, inaccuracies or omissions that may relate to item descriptions, pricing, promotions, offers, shipping charges, transit times and availability. We reserve the right, but are not obligated, to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Site or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
Notwithstanding the above, we undertake no obligation to update, amend or clarify information in the Site or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Site or on any related website, should be taken to indicate that all information in the Site or on any related website has been modified or updated.
These Terms constitute the final, complete, and exclusive agreement of the parties relating to the use of the Site and related services, and supersedes and merges all prior discussions between the parties. The rights and remedies provided to Floyd in these Terms are cumulative and in addition to any other rights and remedies available to it at law or in equity. You may not assign or delegate your rights or duties under these Terms without Floyd’s express prior written consent. Floyd may assign or delegate its rights or duties under these Terms in its sole discretion. Subject to the foregoing, these Terms shall inure to the benefit of each party’s permitted successors and assigns.
Headings herein are for convenience of reference only and shall not affect interpretation of these Terms.
Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FLOYD OR ANY OF ITS SUPPLIERS, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, INCLUDING FOR LOSS, CORRUPTION, OR INACCURACY OF DATA, LOST PROFITS, LOST BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT AND REGARDLESS WHETHER FLOYD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FLOYD’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Governing Law
This Site originates from the State of Michigan. Floyd makes no representation that any content will be available or legal in other locations. You agree to comply with all applicable laws governing your use of the Site. You may not access, download, use or export materials posted to the Site in violation of the export laws or regulations applicable to your or our jurisdiction.
By visiting this Site, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the State of Michigan, without giving effect to any conflict of law provisions, shall govern any proceeding that occurs in arbitration. In the event any claim is found not to be arbitrable, normal choice-of-law rules shall apply to any proceeding brought in state or federal court.
Privacy Policy
Floyd is committed to respecting the privacy of the personal information of the individuals with whom we interact. We have developed a Privacy Policy to describe our privacy practices and how we collect, use and disclose the personal information of those individuals who visit this Site. Our Privacy Policy,
which is posted on the Site, is expressly incorporated into these Terms by reference. It is available at https://floydhome.com/pages/privacy.
Modifications to these Terms
From time to time, we may change: (i) these Terms; (ii) this Site, including terminating, eliminating, supplementing, modifying, adding, or discontinuing any content or feature or data or service on or available through this Site or the hours that they are available; (iii) the equipment, hardware or software required to use and access this Site; and (iv) prices for items available on the Site. We shall not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site, or any items available on the Site.
Any changes we make to these Terms will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on this Site. Your use of our Site following any such changes to these Terms constitutes your agreement to follow and be bound by the Terms as changed. Be sure to return to the Site periodically to ensure you are familiar with the most current version of these Terms.
You may not interfere with the security of, or otherwise abuse this Site or any system resources, services or networks connected to or accessible through this Site. You may only use this Site for lawful purposes and are prohibited from using this Site in a manner that is contrary to or in violation of these Terms.
DISPUTE RESOLUTION PROCESS
PLEASE READ THIS ENTIRE DISPUTE RESOLUTION process SECTION (INCLUDING SUBSECTIONS) CAREFULLY, AS IT INCLUDES A CLASS ACTION WAIVER AND JURY TRIAL WAIVER AND REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS IN CERTAIN JURISDICTIONS.
THE PROCEDURES AND OTHER TERMS SET FORTH IN THIS DISPUTE RESOLUTION PROCESS SECTION APPLY TO ANY AND ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND FLOYD, INC. OR OUR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES, REGARDLESS OF WHEN SUCH CLAIM AROSE (EACH, A “CLAIM”), INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF OR RELATING TO THE SITE, TO THE USE OR ACCESS THEREOF, TO OUR ADVERTISING, TO THE PRODUCTS, SERVICES, MATERIALS, PROGRAMS OR OTHER FEATURES OFFERED, ADVERTISED, MARKETED AND/OR SOLD BY FLOYD AND/OR TO THESE TERMS OF USE.
The provisions of this Dispute Resolution Process section apply to you and Floyd and its affiliates and related entities. This entire Dispute Resolution Process section shall survive termination of this agreement or the parties’ relationship or the end of your use of this Website.
Floyd values our customers and seeks to resolve disputes informally where possible. Before filing any lawsuit relating to a Claim, you agree to first send a detailed notice (“Notice”) to Floyd by email at legal@floydhome.com within the applicable statute of limitations. Your Notice must contain all of the following information: (1) your full name; (2) your address; (3) your telephone numbers; (4) your email address; (5) information sufficient for Floyd to identify any transaction and/or product at issue (e.g., your order number, order confirmation communication, SKU number, etc.); and (6) a detailed description of your Claim, the nature and basis of your Claim(s), and the nature and basis of the relief you are seeking with a calculation for it. You must personally sign this Notice.
Likewise, Floyd agrees that if we have a dispute with you, we will first send a detailed Notice to your e-mail address on file with us. Floyd’s Notice will likewise set forth (1) information sufficient for you to identify any transaction at issue; and (2) a detailed description of our dispute, the nature and basis of our claim(s), and the nature and basis of the relief we are seeking with a calculation for it.
You and Floyd agree to negotiate in good faith, for a period of at least 60 days from the date of the Notice, in an effort to swiftly resolve it to your satisfaction without the need for a formal proceeding. Should Floyd request a telephone conference with you in an effort to resolve your claim as part of this informal process, you agree to personally participate (with your counsel if you are represented). Compliance with and completion of this Mandatory Informal Pre-suit Resolution process is a condition precedent to filing any lawsuit or serving an arbitration demand. You and Floyd agree that any action commenced in court or arbitration without first exhausting the Mandatory Informal Pre-Suit Resolution process shall be defective and subject to dismissal at the cost of the party found to have prematurely commenced the action. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this process. A court shall have the authority to enjoin the filing of any lawsuit concerning a Claim without first providing a Notice or other participating in good faith in this Mandatory Informal Pre-Suit Resolution process.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND Floyd AGREE THAT ANY CLAIM RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS; CLASS ACTIONS AND ANY OTHER CONSOLIDATED, COLLECTIVE, OR REPRESENTATIVE ACTIONS ARE NOT PERMITTED AND YOU AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN ANY SUCH ACTION. You agree that you will not be a member of any putative or actual class in a class action brought by anyone else, nor will you seek to become a class representative. Class actions, private attorney general actions, and other consolidated actions are not allowed. Claims regarding the enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.
Together, the terms in the preceding paragraph shall be called and operate as the “Class Action Waiver.”
Where permissible, and to the fullest extent permitted by applicable law, claims must be brought in court, and only on an individual basis in accordance with the Class Action Waiver. To the extent permissible under applicable law, any such cases shall be decided by a judge and not a jury; the Parties mutually waive their right to have their Claim decided by a jury.
Solely in the context of arbitration, and as specified in Arbitration Clause subsection below, if any court or arbitrator determines that this Class Action Waiver is void, unenforceable, or that an arbitration can proceed on a class basis for any other reason, then the Arbitration Clause set forth in this Dispute Resolution Process section shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
IN JURISDICTIONS WHERE APPLICABLE LAW PROHIBITS THE CLASS ACTION WAIVER FROM APPLYING TO CLAIMS BROUGHT IN COURT, THE CLAIM SHALL BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION, RATHER THAN IN COURT.
The Federal Arbitration Act and federal arbitration law apply to this arbitration clause. By agreeing to arbitration, you and Floyd are not limiting in any way either of our statutory or common law rights or potential remedies to which either of us would be entitled to if our claim were instead being heard in a court.
Any arbitration will be administered by National Arbitration and Mediation (“NAM”) and governed by NAM’s applicable rules (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”), as modified by these Terms of Use. You may obtain a form to initiate arbitration as set forth in the NAM Rules available online at www.NAMADR.com, by emailing NAM at commercial@namadr.com, or by requesting them in writing at the Notice address; this form must be personally signed by the party initiating arbitration (and their counsel, if represented). You and Floyd agree that any counsel representing a party in arbitration must comply with the requirements of Federal Rule of Civil Procedure 11(b), and that the arbitrator may impose any sanctions against all appropriate represented parties and counsel if he or she determines a claim is frivolous.
The arbitration shall occur through the submission of documents to one arbitrator. If the Arbitrator determines that a hearing is necessary, the hearing shall be conducted remotely by telephone or video conference. If the Arbitrator determines that an in-person haring is necessary, the hearing will take place in the United States county where you live or work or such other location agreed upon by both parties. Pursuant to the NAM Rules, you and Floyd will endeavor to select an arbitrator or hearing officer(s) after commencement of the action.
If you and Floyd cannot submit a joint pre-hearing and hearing schedule, each party will submit their own schedule to NAM. If only one schedule is submitted, that schedule will be delivered to the arbitrator for his or her consideration. The arbitrator may adopt the schedule submitted by one party in the absence of a competing or joint schedule.
Payment of all filing, administration and arbitrator fees will be governed by the NAM rules and applicable fee sheet, as determined by NAM. All issues relating in any way to arbitration—including the applicability, scope, and enforceability of the arbitration provisions of these Terms of Use—are for the arbitrator to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision on all procedural and substantive issues is binding only between you and Floyd and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
You and Floyd shall each be limited to a maximum of one (1) fact witness deposition per side, unless we agree otherwise or the arbitrator determines that more depositions are warranted based on the totality of circumstances (including the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests, and whether any or all of the Claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery). Document requests shall be limited to documents that are directly relevant to the matter(s) in dispute or to its outcome; shall be reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; shall not include broad phraseology such as “all documents directly or indirectly related to”; and shall not be encumbered with extensive “definitions” or “instructions.” The arbitrator may edit or limit the number of document requests based on the totality of circumstances, including the factors listed above.
In any arbitration, the defending party may make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. Settlement offers may not be disclosed to the arbitrator until after the arbitrator issues an award on the Claim. If the award is issued in the defending party’s favor, or in the other party’s favor but is less than the defending party’s settlement offer, then the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the Claim may be entitled for the cause of action under which it is suing.
To the extent an arbitration falls within NAM’s definition of a mass filing, you and Floyd agree to the procedures set forth below and in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules,” available at https://www.namadr.com/resources/rules-fees-forms). Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Informal Pre-Suit Resolution process is initiated, until the Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Counsel for each side shall select 15 Claims (30 Claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless you and Floyd agree otherwise in writing. No administrative fees will be assessed in connection with any remaining Claims, unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, you and Floyd shall promptly engage in a global mediation session of all remaining Claims with a retired federal or state court judge, unless the parties agree otherwise.
If the remaining Claims are not resolved at this time, counsel for the parties shall each select an additional 15 Claims per side (30 Claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. This process shall continue, consistent with this staged process set forth above in this subsection, by administering and moving forward a maximum of 30 individual arbitration proceedings at a time until the parties are able to resolve all of the Claims, either through settlement or arbitration.
NOTWITHSTANDING THE PROVISIONS HEREIN, IN MASS FILINGS CONSISTING OF MORE THAN 150 CLAIMS TOTAL, EITHER PARTY MAY OPT OUT OF ARBITRATION AND ELECT TO HAVE THE CLAIMS HEARD IN COURT.
A court of competent jurisdiction shall have the authority to enforce this entire Dispute Resolution section and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the allocation of arbitration fees. If these additional procedures apply to your Claim, and a court of competent jurisdiction determines that they are not enforceable as to your Claim, then your Claim shall proceed in a court of competent jurisdiction consistent with the remainder of these Terms of Use.
Notwithstanding the parties’ agreement to resolve all Claims through arbitration (i) either you or Floyd may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction; and (ii) either you or Floyd may bring suit in court to enjoin infringement or other misuse of intellectual property rights or confidential information. The route to small claims court shall only be the result of a direct filing by you or Floyd. As set forth above, a Claim commenced in arbitration may not be secondarily directed to small claims court per otherwise applicable rules. Any institution of any action for injunctive relief will not constitute a waiver of the right or obligation of the claiming party to submit any claim seeking relief other than injunctive relief to arbitration.
To the fullest extent permitted by applicable law, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY CLAIM MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, THAT CAUSE OF ACTION IS PERMANENTLY BARRED. For purposes of this provision, a Claim is considered commenced at the time the Notice (defined above) is sent. To the extent a Claim is filed in court or arbitration without first providing such Notice (which would be contrary to these terms, as set forth above), the Claim is deemed commenced at the time of such filing.
Severability
Each section, paragraph, part, term, and/or provision of these Terms shall be considered severable; and if, for any reason, any provision herein is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by a court or agency having valid jurisdiction, such provision shall not impair the operation, or have any other effect upon, other provisions of these Terms as may remain otherwise intelligible, and the latter shall continue to be given full force and effect to bind you and Floyd; and said invalid provisions shall be deemed not to be part of these Terms.
However, notwithstanding the preceding paragraph, if the Class Action Waiver is found to be void or unenforceable and you are permitted to proceed in an action other than as an individual, the Claim shall proceed and be resolved in court and NOT by arbitration.
California Consumer Notice
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Website and Service is provided by Floyd, Inc. and / or its subsidiaries and is owned and operated by Floyd, Inc. . If you have a question or complaint regarding the Website or Service, please contact Customer Service either by email at hello@floydhome.com You may also contact Us by writing to Floyd, Inc. , Attn: Legal Department, 1948 Division Street, Detroit, MI 48207. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
Contact Us
If you have any questions about these Terms, you may contact us by email at legal@floydhome.com or if you would like to contact Us for any other reason, you can reach Us either by email at hello@floydhome.com.