Terms of Service and Conditions of SaleUpdated on 2/1/22

These Terms of Service and Conditions of Sale (“Terms”) govern your use of the www.twinkleintime.com website (“Site”) and any purchase you make over the Site. The Site is provided by AndAlways, LLC.

THESE TERMS, ALONG WITH OUR PRIVACY POLICY, CONSTITUTE A BINDING AGREEMENT.  BY USING THE SITE OR MAKING A PURCHASE, YOU ARE AGREEING TO THESE TERMS AND OUR PRIVACY POLICY. PLEASE READ THEM CAREFULLY.  THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION.  PLEASE CAREFULLY REVIEW SECTION 14 BELOW WHICH ALSO DESCRIBES YOUR RIGHT TO OPT OUT.

Section 1 - Eligibility

You must be at least 13 years old to use the Site. If you are under the age of majority in your state of residence, your parent or legal guardian must read and agree to these Terms on your behalf and you may only access and use the Site with permission from your parent or legal guardian.

Section 2 - Acceptable Use

You are responsible for your use of the Site. Our goal is to create a positive user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Site, you may not:

1. violate any law or regulation;
2. violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
3. post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
4. send unsolicited or unauthorized advertising or commercial communications, such as spam;
5. engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site;
6. transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
7. stalk, harass, or harm another individual;
8. impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
9. use any means to scrape or crawl any Web pages contained in the Site;
10. attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site;
11. attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site; or
12. advocate, encourage, or assist any third party in doing any of the foregoing.

Section 3 - User Content

The Site may allow you to upload, submit, store, send, or receive content and data (“User Content”). You retain ownership of any intellectual property rights that you hold in that User Content. When you upload, submit, store, send, or receive User Content to or through the Site, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a royalty-free, worldwide license to use, host, store, reproduce, modify, create derivative works from, publicly perform, publicly display, and distribute your User Content. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is royalty free, meaning we do not owe you anything in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Site.

You promise that:

1. you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
2. your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.

We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Site for any reason.

Section 4 - Ownership

We own or license all right, title, and interest in and to (i) the Site, including all software, text, media, and other content available on the Site (“Our Content”); and (ii) our trademarks, logos, and brand elements (“Marks”). The Site, Our Content, and Marks are all protected under U.S. and international laws.

Section 5 - Privacy

Your privacy is very important to us. Our Privacy Policy, which is incorporated into this Agreement, explains how we collect, use, protect, and when we share personal information and other data with others.

Section 6 - Links

The Site may contain links to other websites and online resources. A link to a third party’s website does not mean that we endorse it or that we are affiliated with it. We are not responsible or liable for any damage or loss related to the use of any third-party website. You should always read the terms and conditions and privacy policy of a third-party website before using it.

Section 7 - Changes to the Site

We enhance and update the Site often. We may change or discontinue the Site at any time, with or without notice or liability to you.

Section 8 - Mobile Message Service Terms and Conditions

The TwinkleInTime mobile message service (the "Service") is operated by AndAlways LLC (“ AndAlways”, “we”, or “us”). Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.

By consenting to AndAlways' SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of AndAlways through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).

You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with AndAlways. Your participation in this program is completely voluntary.

We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.

You may opt-out of the Service at any time. [If sending in the US or Canada] Text the single keyword command STOP to (844) 759-1181. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other AndAlways mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Service support or assistance, text HELP to (844) 759-1181 or email help@twinkleintime.com.

We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.

The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.

To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.

We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Notice.

Section 9 – Order Placement and Acceptance

If you order a Custom Star Map, payment must be received by us before your order is accepted.  We may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order after it has been placed if you have failed to provide accurate or complete information, there are subsequent issues with your payment, or there are subsequent issues with our vendors who fulfill orders placed over the Site.

Once we receive your authorized order and a verified form of payment has been received, we will promptly place your order in line for custom creation, printing, and shipment or delivery.  We will notify you if, for any reason, delivery of your Custom Star Map is delayed, and provide you with an opportunity to cancel your order.

We do not accept orders from dealers, wholesalers, or customers who are resellers.

Section 10 – Shipping

We offer free ground shipping to addresses in the continental United States.  If you would like your Custom Star Map delivered on an expedited basis, we charge a fee. Once your order is ready for shipment, you will receive an e-mail with a tracking number.  Although we may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by us.  The risk of loss and title for such items pass to you upon our delivery to any third party carrier.

Section 11 – Cancellations and Returns Policy

You may cancel your order within 24 hours of receiving the e-mail from us attaching the Proof of your Custom Star Map.

Section 12 - Termination

We reserve the right to not provide the Site or sell to any person. We also reserve the right to terminate any user’s right to access the Site at any time, in our discretion. If you violate any of these Terms, your permission to use the Site automatically terminates.  Sections 12 through 15 below, and all representations made by you, survive termination.

Section 13 - Disclaimer and Limitations on Our Liability

EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, INCLUDING THE STATE OF NEW JERSEY, YOU USE THE SITE AT YOUR OWN RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR COMPANY, ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE SITE OR PRODUCTS PURCHASED OVER THE SITE, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF, NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH ABOVE, WE ARE FOUND LIABLE UNDER ANY THEORY, OUR MAXIMUM LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO THE LESSER OF USD $500 OR THE TOTAL AMOUNT OF MONEY YOU PAID TO US OVER A 1-YEAR PERIOD.

Some jurisdictions, including the State of New Jersey, do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.

Section 14 - Indemnification

To the fullest extent permitted by law, you agree to indemnify and hold harmless Twinkle In Time® and its officers, employees, directors, shareholders, parents, subsidiaries, affiliates, agents, and licensors from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your account, or any actual or alleged breach of any representation by you. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.

Section 15 – MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER

PLEASE READ THIS PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS.  EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION.  YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR JUDGE. YOU ALSO AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDTE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

All disputes, controversies, or claims between you and Twinkle In Time®, its officers, directors, or employees arising out of, relating to, or connected in any way to these Terms, the Privacy Policy, the Site, your purchase, our relationship, or the scope or applicability of this agreement to arbitrate, shall be resolved exclusively by final and binding confidential arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS.  This arbitration agreement is made pursuant to a transaction involving interstate commerce, sets forth the terms and conditions of our agreement to final and binding confidential arbitration, and shall be governed by and enforceable under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, as amended. The arbitration shall be held in San Diego, California and, if the controversy involves less than $500, the arbitration may be conducted by telephone or by written submission. The arbitrator’s decision shall be controlled by the these Terms and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Site. The arbitrator shall apply California law, exclusive of its conflicts of law rules, consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law.  The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether any non-signatory to this agreement can enforce this provision against you or us. Claims shall be arbitrated on an individual, non-class, and non-representative basis. You and the Company hereby expressly agree not to bring or join any class claims or representative claims against the other. The arbitrator shall not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator shall not have the power to award punitive damages against you or the Company, its officers, directors, or employees. In the event that the administrative fees and deposits that must be paid to initiate arbitration against the Company, its officers, directors, or employees exceed $125.00 USD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, Twinkle In Time® agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Twinkle In Time®will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.  For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.

This provision survives termination of your account or relationship with us, bankruptcy, assignment, or transfer.  If the class action waiver above is deemed unenforceable (i.e., unenforceability would allow the arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply.  If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

As an exception to this arbitration provision, we may file a lawsuit against you for injunctive relief in order to prevent or stop you from infringing any of our intellectual property rights.  Such a suit shall be filed in the state or federal courts located in San Diego, California, and you expressly consent to and forever waive any challenge to the jurisdiction and venue of those courts.

YOU HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE A PRODUCT OR FIRST ACCESS AND USE THE SITE (WHICHEVER COMES FIRST) BY WRITING TO US AT help@twinkleintime.com.  FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING THE DATE OF PURCHASE ALONG WITH YOUR ORDER NUMBER, OR THE DATE OF FIRST ACCESS AND USE OF THE WEBSITE, WITHIN THE THIRTY (30) DAY PERIOD.  IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING INDIVIDUAL ARBITRATION AS FORTH IN THIS AGREEMENT.

Section 16 - Copyright Policy

All notices of claimed infringement under the Digital Millennium Copyright Act should be sent to the Copyright Agent e-mail address below and include the following information:

1. Your address, telephone number, and email address.
2. A description of the copyrighted work that you claim has been infringed.
3. A description of where the alleged infringing material is located.
4. A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
5. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
6. A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.

Copyright Agent: dmca@twinkleintime.com

For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.

Section 17 - Other Provisions

Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.

The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these Terms, the Site, or our relationship.

If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.

The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.

We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.

Section 18 - Changes to these Terms

From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use the Site, you are agreeing to the revised Terms.

Please print a copy of these Terms for you records and PLEASE check the Site frequently for any changes to these Terms.