THESE WEBSITE TERMS OF USE ARE AN ENFORCEABLE CONTRACT BETWEEN US WHICH AFFECTS OUR RESPECTIVE LEGAL RIGHTS AND INCLUDES A MANDATORY INDIVIDUAL ARBITRATION REQUIREMENT AND CLASS ACTION AND JURY TRIAL WAIVERS WHICH ARE SET FORTH BELOW.
Effective Date: October 8, 2021
These terms of use are entered into by and between D&S Brands, LLC d/b/a Daymakers (“Daymakers” or “Company” and also referred to as “we”, “us” or “our”). The following terms and conditions (“Terms of Use”) govern your access to and use of shopdaymakers.com, including any content, functionality, and services offered on or through shopdaymakers.com (collectively, the “Website”). These Terms of Use also apply to various online services and applications which are or may be provided by Daymakers on or through the Website, as well as any mobile/tablet applications that link to or reference these Terms of Use (collectively, the “Services”). For the avoidance of doubt, the term “Services” as used in this Agreement means all interactions, and services owned, offered, or operated by Daymakers, including the content, features, data, software and information made available or gathered through the Website or any related mobile applications, other websites, or in-person interactions relating to or with the Company.
By accessing and browsing the Website, using any of the services We offer, signing up for promotional mailings and emails, purchasing products from us, communicating with us, and/or registering with us, you agree to be bound fully by the provisions below, as well as our Privacy Policy, which are subject to change at any time, upon publishing of same.
Internet technology and applicable laws, rules, and regulations change frequently, as do internal policies and procedures. Accordingly, Daymakers reserves the right to make changes to the Terms at any time. Your use of the Website after such changes have been made constitutes assent to any new provisions of these Terms of Use that may be posted on the website. However, under no circumstances shall any changes to these Terms be applied retroactively.
We reserve the right to withdraw or amend this Website, and any Service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material, except as may relate to transactions, in which case we will provide reasonable notice of such updates and refunds, if and as applicable.
Products may only be purchased by individuals who can form legally binding contracts under applicable law. The Website is not intended for persons under the age of 13. Minors under 18 and at least 13 years of age may only access the Website if they have appropriate permission and direct supervision by a responsible adult. Children under age 13 are not permitted to use the Website. You are responsible for any and all account activity conducted by a minor on your account.
General. The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
The Company name, the term Daymakers, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners and you must not use such marks without explicit permission from such respective owners.
These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website. You must not:
You must not access or use, for any commercial purposes, any part of the Website or any services or materials available through the Website. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.
Copyright. The graphic and textual content, arrangement, and assembly of this site is the property of Daymakers or its content suppliers and protected by U.S. and international copyright laws. Users should feel free to use this site as a shopping resource, but any other use of the site, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the content on this site is strictly prohibited. In addition, the software used on this site is the property of Daymakers or its software suppliers and is protected under U.S. and international copyright laws.
Trademarks. “Daymakers” and “shopdaymakers.com” are trademarks of Daymakers and shopdaymakers.com graphics, logos, product names, and service names are trademarks of Daymakers. These trademarks may not be used in any manner that is likely to cause confusion among customers, or in any manner that disparages, or discredits, or dilutes Daymakers, its trademarks or goodwill. Any other trademarks not owned by D&S Brands, LLC that appear on this site are the property of their respective owners. You may not use any of these trademarks, trade dress, or trade names without express permission.
Ownership and Use. Daymakers retains exclusive ownership of its intellectual property rights and you may not obtain any rights therein by virtue of these Terms of Use, or otherwise. You will have no right to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit or sublicense from materials or content available on Website in the normal course of your use of the Website. You may not use any third-party intellectual property without express written permission of the applicable party, except as permitted by law.
Infringement Notice. Daymakers respects the intellectual property rights of others and expects its users to do the same. If you believe Website or a user of the Website has infringed intellectual property please notify us at Hello@shopdaymakers.com and provide the following information:
Prohibited Conduct. In your use of the Website and/or the Services, you may not (i) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party, including Daymakers; (ii) disrupt or interfere with the security or use of the Website; (iii) interfere or damage the Website, including without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods of technology; (iv) attempt to use another’s account, or personal information, impersonate another person or entity, misrepresent your affiliation with another person or entity, including Daymakers, federal, state or municipal government, a political candidate, or create a false identity; (v) attempt to obtain unauthorized access to the Website or Services, or portions of the network that are restricted from general access; (vi) engage, directly or indirectly, in transmission of ‘spam,‘ chain letters, junk mail or any type of unsolicited solicitation; (vii) collect, manually or through automatic process, information about other users without their express consent or other information related to the Website; (viii) use meta tags or other “hidden text” utilizing Website, Daymakers’ name, trademarks, or product names; (ix) advertise, offer to sell, or sell any goods or services, except as expressly permitted by Daymakers, in writing by an authorized agent; (x) engage in any activity that interferes with any third party‘s ability to use or enjoy the Website; or (xi) assist any party in engaging in any activity prohibited by these Terms of Use.
Privacy Policy. You agree to follow Daymakers’ Privacy Policy, located on our Website which is incorporated by reference into these Terms of Use.
Email and/or Mobile Messaging Subscriptions Terms & Conditions. By subscribing to Daymakers’ updates, which may include automated emails and/or mobile messages, you agree to receive recurring automated messages and browse and/or cart abandonment messages to the email address and/or telephone number used at the time your subscription. If you provide, or have provided, a telephone number, email address, or other means of contact, to us, you expressly agree that we may contact you utilizing such information, in order to provide you with informational and service messages. You represent and warrant that you are the authorized subscriber for the contact information you have provided. Please be aware that we may record or monitor telephone calls for quality assurance or training purposes. Email and/or message frequency may vary. For Mobile Messaging, message and data rates may apply and the mobile carriers are not liable for delayed or undelivered messages.. Consent is not required as a condition of purchasing any goods or services. For more information, please review our Privacy Policy , located on our Website.
No Agency. No offering or use of Services or any term in this Agreement creates any agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship, including if after registration the Company deems you qualified for consideration for customer or client project engagement.
Warranties by User. You represent and warrant to the Company that:
Disclaimer of Warranties. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK.
DAYMAKERS PROVIDES ITS WEBSITE “AS IS” AND “AS AVAILABLE” BASIS. DAYMAKERS DOES NOT MAKE ANY REPESENTATIONS OR WARRANTIES CONCERNING PROVISION OF WEBSITE SERVICES. DAYMAKERS DOES NOT REPRESENT OR WARRANT THAT IT (I) WILL PROVIDE UNINERRUPTED SERVICE OR ACCESS; (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS; (III) WILL MEET YOUR REQUIREMENTS; OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH HARDWARE OR SOFTWARE YOU USE.
DAYMAKERS MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS OF USE OR ITS RETURN POLICY AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
DAYMAKERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY RESULT FROM THE USE OF OUR PRODUCTS INCLUDING ECONOMIC LOSS, INJURY, ILLNESS, OR DEATH. DAYMAKERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF WEBSITE, BASED ON ANY CAUSE OF ACTION, EVEN IF DAYMAKERS OR ANY OF ITS INDEMNIFIED PARTIES ARE ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Indemnification. You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Website.
Limitation of Liability. In no event shall the Company be liable for any damages, including without limitation direct, indirect, special, incidental, consequential damages, losses, or expenses arising in connection with your use of our Services or content or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, or system failure in any way related to our Services or content, including but not limited to the inaccuracy of any profile information, project, reports, tools, analyses, agreements, or forms available through our Services.
You agree that neither the Company, its affiliates, its clients or customers, nor any of their respective employees or agents involved in the creation, production, and distribution of our Services, is liable to any person or entity whatsoever for any loss, damage (whether actual, consequential, punitive, or otherwise), injury, claim, liability, or other cause of any kind or character whatsoever based upon or resulting from the use or attempted use of our Services, including but not limited to any claim or damage arising from failure of performance, error, omission, interruption, deletion, defect, delay in operation, computer virus, theft, destruction, unauthorized access to or alteration of personal records, or the reliance upon or use of data, information, opinions or other materials accessed through our services. Additionally, you agree that the Company is not liable or responsible for any defamatory, offensive, or illegal conduct of third parties.
Governing Law and Jurisdiction. All matters relating to the Website and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule (whether of the State of Arizona or any other jurisdiction).
Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona, in each case located in the City of Phoenix, and County of Maricopa, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
No Legal Advice. You should obtain services of a competent professional if you require legal, tax, or other professional assistance including the review of agreements and forms made available to you through our Services, including as may relate to your registration and submission of your profile. The Company does not offer legal, tax, or other professional services.
Severability. The provisions of this Agreement are severable. In the event any provision of this Agreement is unenforceable, then that provision is severable from this Agreement. Unenforceability of a provision of this agreement shall not affect the validity and enforceability of any remaining provisions.
Assignment. We may assign our rights or obligations under this Agreement to any party at any time without notice to you. You may not assign your rights or obligations under this Agreement without the prior written consent of the Company.
Returns. Our returns policy is set forth at return policy.
At Daymakers, we hold in the highest regard our relationships with our customers. Should a dispute arise, we work hard to make things right with every consumer, including those who purchase products from us. Sometimes, a third party may be necessary to help us resolve our disputes, and these Terms limits us both to arbitration (or small claims court, if a claim qualifies) in all instances.
YOU AND DAYMAKERS AGREE THAT ALL DISPUTES BETWEEN US THAT WE CANNOT RESOLVE INFORMALLY MUST BE RESOLVED ON AN INDIVIDUAL BASIS ONLY, BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT.
YOU AND DAYMAKERS FURTHER AGREE TO WAIVE ALL RIGHTS WE MAY HAVE TO A TRIAL BY JURY OR TO LITIGATE OUR DISPUTES IN COURTS OTHER THAN SMALL CLAIMS COURT.
YOU AND DAYMAKERS ALSO AGREE TO WAIVE ALL RIGHTS TO PARTICIPATE IN ANY WAY IN A CLASS ACTIONS/CLASS ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS, OR OTHERWISE TO ASSERT OR PROCEED WITH ANY CLAIM AGAINST EACH OTHER ON A COLLECTIVE OR CONSOLIDATED BASIS. IN THIS REGARD, NO ARBITRATION BETWEEN US WILL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY.
You and Daymakers understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. There is no judge or jury in arbitration, and discovery and court review of an arbitration award are limited. However, under this agreement, an arbitrator can award on an individual basis the same damages and other relief as a court and must follow these Terms just as a court would.
For purposes of clarity, but not as a limitation of any kind, this clause covers any and all claims related to or arising out of the content or operation of the Website, your visits to the Website, your purchases (or attempted purchases) from Daymakers, your requests to receive advertising or promotions from Daymakers, your participation in any contests, special offers, coupon or discount promotions offered by Daymakers, and all communications occurring as result of, in relating in any way to, your use of our website, or any other interactions between us.
This arbitration agreement, and all of the rights, obligations, and requirements it contains, shall be interpreted without reference to any other provisions of the Terms. To the extent that any other provision of the Terms is found to be inconsistent in any way with the rights, duties, and requirements of this arbitration agreement, and where the application of such a provision would change or render unenforceable any part of this arbitration agreement, such provision shall be null and void to the extent necessary to preserve and protect this agreement to arbitrate our disputes.
Waiver of Class Action Rights. By entering into these Terms of Use, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claims arising out of, relating to, or connected with these Terms of Use or Daymakers product must be asserted individually.
Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of Website or Daymakers products must be brought within one calendar year after such claim or cause of action arises, or forever be barred.
Integration. These Terms of Use contain the entire understanding of the you and Daymakers regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between us regarding its subject matter.