Customer Terms of Service
Last Updated: May 31, 2018
These terms of service (the “Terms”) cover your use of and access to (1) www.mckellarsflowers.ca and its associated domains (the “Retailer Site”) and (2) https://www.lovingly.com and its associated domains (our “Website” and, together with the Retailer Site, the “Sites”). Lovingly, LLC and its related companies (collectively, “we,” “us” or “Lovingly”) operate the Retailer Site on behalf of McKellars Flowers and Gifts (“Retailer”).
Lovingly provides an eCommerce platform that helps Retailer market and sell its products and services online. To the extent you use the Sites to browse, inquire about or purchase products or services listed on the Sites, the Terms will refer to you as “Customer.” You are a Customer, for instance, if you order flowers through the Sites.
PLEASE READ THIS AGREEMENT CAREFULLY. IT INCLUDES IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND OBLIGATIONS. IF YOU DO NOT ACCEPT THIS AGREEMENT, WE DO NOT GRANT YOU ANY LICENSE OR USE RIGHTS HEREUNDER, AND YOU MAY NOT USE OR ACCESS THE RETAILER SITE.
You must be 18 years of age or older to use the Sites. If you are under the age of 18, please discontinue use of the Retailer Site immediately. Lovingly reserves the right to ask for proof of age and to withhold or terminate your use of the Retailer Site if you are below the speciﬁed age requirement.
You represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. If you are representing a corporation or other legal business entity, you hereby represent and warrant that such entity is validly formed and existing under the laws of its jurisdiction and that you are duly authorized as its agent to bind it to this Agreement.
Accessing or using the Retailer Site may be prohibited or restricted in certain countries. If you access or use the Retailer Site from outside of the United States, you are responsible for complying with the laws and regulations of the country, territory or jurisdiction from which you access or use the Retailer Site. By accessing or using the Retailer Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, as the case may be, any person, organization or country which the United States has (i) identified as a “Specially Designated National,” (ii) placed on the Commerce Department’s Table of Deny Orders or (iii) specified as the target of a commercial embargo.
Relationship Between Lovingly, Retailer and Customer
AS BETWEEN LOVINGLY AND RETAILER, YOU, AS A CUSTOMER, AGREE THAT, WITH RESPECT TO THE RETAILER SITE AND ANY PRODUCTS OR SERVICES SOLD THEREON, IT IS SOLELY RETAILER’S RESPONSIBILITY TO (1) INFORM YOU AND ANY OTHER CUSTOMERS OF ANY RELEVANT RETAILER POLICIES AND PRACTICES THAT MAY IMPACT THE PROCESSING OF YOUR PERSONAL INFORMATION; (2) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY CUSTOMERS THAT ARE NECESSARY FOR THE LAWFUL USE OF YOUR PERSONAL INFORMATION AND THE SALE OF PRODUCTS AND SERVICES ON THE RETAILER SITE; (3) ENSURE THAT THE TRANSFER AND PROCESSING OF YOUR PERSONAL INFORMATION UNDER THIS AGREEMENT IS LAWFUL; AND (4) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU RELATING TO OR BASED ON YOUR PERSONAL INFORMATION, OR RETAILER’S FAILURE TO FULFILL THESE OBLIGATIONS. LOVINGLY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE PRODUCTS AND SERVICES OFFERED ON THE RETAILER SITE, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “ AS AVAILABLE” BASIS.
You may be given the option to register for an account through the Sites (a “Customer Account”). Customer Accounts will be used to help enhance our or Retailer’s ability to provide you with appropriate products and services.
Accuracy of Information
You agree to provide us with accurate, complete and updated information with respect to your Customer Account. We may need to use this information to contact you regarding your purchases or other use of the Sites.
Corporate Account Control
If you create a Customer Account as a representative of or on behalf of an organization (e.g. by using a corporate email address), your organization will be entitled to control and modify that Customer Account and to otherwise exercise its rights under this Agreement. If your organization elects to replace you as the representative with ultimate authority for the Customer Account, we will provide you with notice following such election, and you agree to take any actions reasonably requested by us or your organization to facilitate the transfer of authority to a new representative of the organization.
You agree to safeguard your Customer Account and to make sure that others do not have access to your Customer Account or password. You are solely responsible for any activity on your Customer Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Customer Account. You must immediately notify us if you know or have any reason to suspect that your Customer Account has been accessed without your authorization or that your Customer Account or password has been stolen, misappropriated or otherwise compromised.
You might occasionally submit content or information to the Sites in the course of obtaining support, reviewing products or otherwise communicating with us, Retailer or other Customers. Such content includes, without limitation: text, photos, images, audio, video, code, messages, files and any other materials (“Customer Content“).
You represent and warrant that you own all rights to your Customer Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your Customer Content via the Sites in the manner required by this Agreement. If we use your Customer Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights.
License to Your Content
ACCEPTABLE AND PROHIBITED USE
You represent and warrant that your use of the Sites is not contrary to law, including, without limitation, applicable privacy laws, export or import controls and sanctions. You may not use the Sites where prohibited by law.
Unowned or Unlicensed Content
Certain content on the Sites may be protected by others’ intellectual property, trade secret or other rights. You shall not copy, upload, download or share content unless you have the right to do so.
Interfering with the Sites
You agree not to interfere with or disrupt the Sites or servers, networks or devices connected to the Sites, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You shall not inject content or code or otherwise alter or interfere with the way any of the Sites are rendered or displayed in a user’s browser or device. In addition, you agree not to:
- probe, scan or test the vulnerability of any system or network;
- breach or otherwise bypass any security or authentication measures;
- access, tamper with or use non-public areas or parts of the Sites, or shared areas of the Sites that Lovingly has not invited you to access;
- take apart, decompile or reverse engineer any part of the Sites in an effort to access things such as source code or algorithms;
- access, search or create accounts for the Sites by any means (for example, scraping, spidering or crawling) other than our publicly supported interfaces;
- take action that imposes an unreasonable load on our infrastructure or that of our third party providers (where Lovingly reserves the right to determine what is reasonable or unreasonable); and
- provide your password to any other person, use any other person’s username and password, or otherwise manage your Customer Account through shared credentials (unless such management explicitly approved by Lovingly).
Deceptive, Fraudulent and Criminal Behavior
When using or accessing the Sites, you agree not to:
- act in a way that is false, fraudulent, inaccurate or deceiving;
- impersonate another person, company or entity;
- engage in misleading or unethical marketing or advertising;
- use unauthorized credit cards, debit cards or other unauthorized payment devices on the Sites;
- infringe or misappropriate anyone’s copyright, trademark or other intellectual property rights or to violate anyone’s privacy or publicity rights.
- threaten, harass or abuse any individuals;
- incite violence;
- publish sexually explicit or obscene material;
- condone or promote self-harm;
- condone or promote violence against any person or group based on race, ethnicity, nationality, religion, gender, gender identity, sexual preference, age or disability; or
- violate any laws through your use of the Sites, including, without limitation, all local laws regarding online conduct and acceptable content.
Consequences of Prohibited Use
If we conclude, at our sole discretion, that you have misused the Sites, we may take action against your Customer Account. We do our best to ensure fair outcomes, but in all cases, we reserve the right to remove any content or suspend or terminate your Customer Account without liability or notice to you, at any time and for any reason (except where prohibited by applicable law).
You may report violations of these guidelines directly to Lovingly by emailing email@example.com.
THIRD PARTY SERVICES, SITES AND CONTENT
Third Party Services
The Sites are integrated with various third party services and applications (collectively, “Third Party Services”) that may allow you to access their content and products. Examples of Third Party Services include social media platforms, eCommerce payment processors and other integration partners and service providers. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We do not control Third Party Services, and we are not liable for the actions of any Third Party Services or for any transaction you may enter into with them. Your security when using Third Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We are not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result (except where prohibited by applicable law).
Third Party Sites
The Sites may contain links to third party sites. When you access third party sites, you do so at your own risk. We do not control and are not liable for any part of those sites or any actions of such third parties.
Third Party Content
The Sites may contain content: (1) that is offensive or objectionable; (2) that contains errors; (3) that violates intellectual property, trade secret, privacy, publicity or other rights or the good name of you or third parties; (4) that is harmful to your or others’ computers or networks; (5) that is unlawful or illegal; or (6) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. We do not endorse Customer Content, or represent that we believe such content to be accurate, useful, lawful or non-harmful. We are not a publisher of, and we are not liable for, any Customer Content uploaded, posted, published or otherwise made available via the Sites by you or any other Customer. You are responsible for taking precautions to protect yourself, and your computer or network, from Customer Content accessed via the Sites.
LOVINGLY’S INTELLECTUAL PROPERTY
The Retailer Site
Lovingly, Retailer and their licensors own and hereby retain all respective proprietary rights in the Sites. The Sites are protected by copyright, trademark and other US and foreign laws. This Agreement does not grant you any right, title or interest in the Sites, our trademarks, logos or other brand features or intellectual property or trade secrets or others’ content in the Sites. You agree not to change, translate or otherwise create derivative works of the Sites or others’ content.
Lovingly Can Use Your Feedback
To the extent that you give us feedback, comments, or suggestions concerning the Retailer Site (collectively, “Feedback”), you acknowledge and agree that all Feedback is Lovingly’s sole and exclusive property. You agree to irrevocably assign and transfer to us, and hereby do assign and transfer to us all of your right, title, and interest in and to the Feedback, including all intellectual property rights therein. To the extent that the foregoing assignment is ineffective for whatever reason, you agree to grant and hereby grant to Lovingly a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us in acquiring, perfecting and maintaining our intellectual property rights in and other legal protections for the Feedback.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible the Sites infringe your copyright, you may request removal of those materials (or removal access to them) from the Sites by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
Attn: Copyright Agent
1399 Route 52, Suite 100
Fishkill, NY 12524
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
Counter Notification Procedures
If you believe that material you posted on the Sites was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter-Notice must include substantially the following:
- Your physical or electronic signature.
- An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
- A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Sites may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Sites was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the Customer Accounts of users who are repeat infringers.
TERMS OF SALE
Order Acceptance and Cancellation
You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
Prices and Payment Terms
Prices posted on the Retailer Site may be different than prices offered by Retailer at its physical store location. All prices, discounts, and promotions posted on the Sites are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total, and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
We may offer from time to time promotions on the Site that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. You represent and warrant that (1) the credit card information you supply to us is true, correct and complete, (2) you are duly authorized to use such credit card for the purchase, (3) charges incurred by you will be honored by your credit card company, and (4) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.
Shipments; Delivery; Title and Risk of Loss
We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.
Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments. You are responsible for filing any claims with carriers for damaged or lost shipments.
Returns and Refunds
We do not grant refunds at this time, and all products on the Sites are sold on a non-returnable basis. However, we value your satisfaction and encourage you to reach out to us at firstname.lastname@example.org if you are less than satisfied with your purchase. If you believe that your credit card has been charged in error please contact us at email@example.com.
TERM AND TERMINATION; RESERVATION OF RIGHTS
This Agreement will remain in effect until terminated by either you or us. You may terminate this Agreement at any time by contacting us at firstname.lastname@example.org.
We reserve the following rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by applicable law): (1) we may change parts or all of the Sites and their functionality; (2) we may suspend or discontinue parts or all of the Sites; (3) we may terminate, suspend, restrict or disable your access to or use of parts or all of the Sites; and (4) we may change our eligibility criteria to use the Sites (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Sites in that jurisdiction). Without limiting our rights hereunder, we will endeavor to provide you reasonable notice upon suspending or terminating part or all of the Sites.
Any future release, update or other addition to the Retailer Site shall be subject to this Agreement. Lovingly reserves all rights not explicitly granted in this Agreement.
All sections of this Agreement that by their nature should survive termination shall survive termination, including without limitation: Your Content, Lovingly’s Intellectual Property, Digital Millennium Copyright Act Notice, Warranty Disclaimers, Limitation of Liability, Indemnification, Dispute Resolution and Additional Terms.
DISCLAIMER OF WARRANTY
LOVINGLY SERVICES, INCLUDING, WITHOUT LIMITATION, LOVINGLY CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER LOVINGLY NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE “LOVINGLY PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (1) THE SITES; (2) THE CONTENT OF THE SITES; (3) THE PRODUCTS OR SERVICES OFFERED ON THE SITES; OR (4) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO LOVINGLY OR VIA THE SITES. IN ADDITION, THE LOVINGLY PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE LOVINGLY PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITES WILL BE ERROR-FREE; THAT ACCESS TO THE SITES WILL BE UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVER THAT MAKES THE SITES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE LOVINGLY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITES IS AT YOUR SOLE RISK. THE LOVINGLY PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE LOVINGLY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THIS AGREEMENT.
BY ACCESSING OR USING THE SITES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITES.
THE LOVINGLY PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
LIMITATION OF LIABILITY; WAIVER
UNDER NO CIRCUMSTANCES WILL THE LOVINGLY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (1) THE SITES; (2) ANY CONTENT ON THE SITES; (3) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITES; (4) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE LOVINGLY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SITES; (5) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (6) ANY ERRORS OR OMISSIONS IN THE SITE’S OPERATION; OR (7) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. SUCH LOSSES OR DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE LOVINGLY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE LOVINGLY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE LOVINGLY PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE TOTAL AMOUNT THAT YOU HAVE SPENT ON THE SITES WITHIN THE LAST CALENDAR YEAR.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF LOVINGLY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE LOVINGLY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE LOVINGLY PARTIES.
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
LOVINGLY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
You agree to defend (at Lovingly’s request), indemnify and hold harmless Lovingly, 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, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Sites or those conducted on your behalf): (i) your content or your access to or use of the Sites; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully as required by Lovingly in the defense of any claim. Lovingly reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Lovingly.
ALTERNATIVE DISPUTE RESOLUTION
This section applies only to Customers who are: (1) US citizens, (2) non-US citizens who are not EU residents and (3) EU residents who bring any claim against Lovingly in the US.
You agree to attempt to resolve any claims directly with Lovingly prior to filing such claims or initiating a formal proceeding with any court, governmental agency or other third party. To work with Lovingly directly, please email email@example.com with a description of your claim. We will try to resolve the dispute directly via email, phone or other methods. If we cannot resolve the claim or dispute within thirty (30) days of our receipt of your first email, you or Lovingly may then bring a formal proceeding.
You agree that any controversy, claim or dispute arising out of or relating to this Agreement, or the breach thereof, will be resolved by ﬁnal and binding arbitration under the rules of the American Arbitration Association in an arbitration proceeding conducted in White Plains, New York. Except as otherwise provided in this Agreement, both you and Lovingly waive any right to adjudicate any dispute in any other court or forum, except that a party may seek interim relief before the start of arbitration in a state or federal court sitting in White Plains, New York, to protect its conﬁdential information. Both you and Lovingly shall abide by any decision in the arbitration and any court having jurisdiction may enforce it. Both you and Lovingly submit to the jurisdiction of the federal and state courts sitting in White Plains, New York to compel arbitration or to conﬁrm an arbitration award. The prevailing party shall be entitled to reimbursement of attorney fees and costs. Use of the Sites is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. Lovingly’s performance under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement shall abridge Lovingly’s rights to comply with any governmental, court and law enforcement requests or requirements relating to your use of the Sites or information provided to or gathered by Lovingly with respect to such use.
Right to Opt Out
You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
No Class Actions
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE OR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND LOVINGLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
If any provision of this section is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
TIME LIMITATION ON CLAIMS
You agree that any claim you may have arising out of or related to your relationship with Lovingly must be filed within one (1) year after you first know, or reasonably should have known of the act, omission or default giving rise to the claim; otherwise, your claim is permanently barred. If applicable law prohibits a one (1) year limitation, any claim must be asserted within the shortest time period permitted by applicable law.
Third Party Rights
This Agreement does not confer any third-party beneficiary rights.
We may provide any notice to you under these Terms by: (1) sending a message to the email address you provide or (2) by posting to the Sites. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
To give us notice under these Terms, you must contact us as follows: (i) by writing to firstname.lastname@example.org; or (ii) by personal delivery, overnight courier, or registered or certified mail to:
Attn: Legal Department
1399 Route 52, Suite 100
Fishkill, NY 12524
We may update our email address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
You will not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Lovingly. Any purported assignment or delegation by you without the appropriate prior written consent of Lovingly will be null and void. Lovingly may assign this Agreement or any rights hereunder without your consent. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement.
Waiver and Severability
No waiver by Lovingly of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Lovingly to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
We may modify this Agreement from time to time, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we will notify you (by, for example, sending you an email or displaying a prominent notice within the Sites). The notice will designate the date on which the modifications become effective. Modifications will never apply retroactively. By continuing to use or access the Sites after any modifications come into effect, you agree to be bound by the modified Agreement, including any price changes. If you disagree with our changes, then you should stop using the Sites.
Events Beyond Lovingly’s Control
We are not in breach of this Agreement or liable to you if there is any total or partial failure of the Sites resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
Governing Law; Venue
If there is any dispute arising out of the Sites, by using the Sites, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without giving effect to its conﬂict of laws principles and excluding that body of law known the United Nations Convention on Contracts for the Sale of Goods. You acknowledge and agree that any violation of this Agreement may cause Lovingly irreparable harm, and therefore agree that Lovingly will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Lovingly may have for a breach of this Agreement.
This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.