Table of contents
1. PARTIES; BINDING AGREEMENT
6. Frequently Asked Questions
9. Membership Services
11. Late Fees
12. MER Packaging
13. Other Terms Related to Products and Services
14. Returns and Lost Items
15. MER Partners
16. Billing and Payments
18. Free Trials and Promotions
20. Ratings and Reviews
21. LIMITATION OF LIABILITY
22. DISCLAIMER OF WARRANTIES
24. Consent to Receive Periodic Messages
26. Choice of Law
27. Arbitration Agreement
29. Information or Complaints
TERMS AND CONDITIONS
1. parties; binding agreement
1.1 This Terms of Service agreement (“Terms”) is between you (“you” or “your”) and Virdiss Inc. (“we,” “our,” “us,” “My Ethnic Rentals,” or “MER”), and governs your access to and use of our website located at myethnicrentals.com (and any successor site thereto) (the “Site”), our mobile application (the “App”) and related services, including MER’s product rental and sale services (together with the Site, the App, and the Content (as defined below), the “Services”). These Terms also apply to in-person rentals and sales, which are part of the Services.
1.2 By accessing or using any of the Services, including by creating an Account (as defined below), you hereby acknowledge that you have read, understood, and agreed to be bound by the Terms.
1.3 These Terms are a legally binding contract between you and MER. By accepting these Terms, you represent that you are an individual of legal age to form a binding contract or, if you are not, that you have obtained parental or guardian consent to enter into these Terms. Under no circumstances may you access or use the Services if you are permitted to enter into a binding contract in accordance with Applicable Law. Your access to and use of the Services in any way also means that you agree to all of these Terms, and these Terms will remain in effect while you access or use the Services. These Terms incorporate by reference any additional terms and conditions posted by MER through the Site and/or the App, or otherwise made available to you by MER (the “Additional Terms”), and you understand and agree that by accessing or using any of our Services, you agree to also comply with all Additional Terms.
2.1 Except for limited circumstances described in these Terms, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration, or to a trial by jury.
3.1 The Services are controlled or operated (or both) from Canada, and are not intended to subject MER to any non-Canadian jurisdiction or law. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4.1 We may, at any time and without liability, suspend, modify, or discontinue all or part of the Services (including access to the Site via any third-party links). We encourage you to check our Site periodically for the most current Service offerings. Similarly, we may update the Content, including descriptions and specifications about Products or Services, and we reserve the right to remove any Content (as described below) at any time, for any reason (including, but not limited to, if someone alleges you contributed Content in violation of these Terms), in our sole discretion, and without notice. MER will have no liability for any change in the Services, or any suspension or termination of your access to Services.
4.2 We also reserve the right to change these Terms at any time by notifying you of such changes by any reasonable means, including by posting the revised Terms on the Site. Your continued use of the Services, including by renting or purchasing Products (as defined below) from us, following any changes to these Terms will indicate your acknowledgement of such changes and agreement to be bound by the revised Terms. Any changes to the Terms will not apply to any dispute between you and us that arises prior to the date on which we posted the revised Terms incorporating such changes, or otherwise notified you of such changes. If you don’t agree with the new Terms, you may no longer access or use the Services.
6. Frequently Asked Questions
6.1 Please also refer to our online FAQ section for general information regarding our Services.
7.1 Accessing MER Services:
7.1.1 As noted above, you shall be permitted to enter into a binding contract in accordance with Applicable Law to access or use the Services. To use the Services, you may be required to sign up for an account (your “Account”), select a password and username (your “MER User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and up-to-date information, and to maintain and update such information. You may not select as your MER User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. We may reject, or require that you change, any MER User ID, password or other information that you provide to us in registering for an Account. You may not transfer your Account to anyone else without our prior written permission.
7.1.2 Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services operated by third parties (each, a “Third Party Account”), such as those offered by Google and Facebook. By using the Services through a Third Party Account, you authorize us to access information from such Third Party Account for use in connection with the Services.
7.1.3 You may only use the Services and Products made available to you for your own personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services or Products is prohibited by these Terms or any Additional Terms or applicable laws, then you are not authorized to use the Services or Products. You are solely responsible for any use by you of any Services or Products in violation of these Terms, any Additional Terms, or applicable law.
7.1.4 You may not share your Account (including your MER User ID or password) with anyone, and you must protect the security of your Account (including your MER User ID and password) and any other access tools or credentials. You’re solely responsible for any activity associated with your Account, including all charges incurred from use of the Services with your Account.
7.1.5 We may, for any reason, limit or restrict your access to or use of the Services, including, but not limited to, refusing to fulfil any order that you place with us or restricting orders placed under a single customer Account, payment card, or billing or shipping address. We reserve the right to limit, cancel, or prohibit any use of the Services for any reason in our sole discretion, including but not limited to availability and geographic concerns, or if we determine or suspect that you are using the Services for fraudulent or commercial purposes or for any other purposes in violation of these Terms or any Additional Terms.
7.2 Cost of the Services
7.2.1 We may charge you to access and use certain parts of the Services (the “Paid Services”). We reserve the right to modify or waive fees required to use certain parts of the Services. You are solely responsible for: (i) the fee for any Paid Services that you order and that are not cancelled in accordance with our cancellation policy, (ii) the price of any Products that are not returned in accordance with our policies, and (iii) any late fees accrued by you due to late or lost items.
7.2.2 For more information about our Services, including pricing and fees and cancellation policies, please see our FAQ Section. Please note that any pricing, fees, and payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
8.1 If you rent a Product through our Reserve Service, the rental fee (“Rental Fee”) will include rental coverage charges and shipping and delivery charges (as applicable) listed on the Reserve Service for your rental of the applicable Product, and you authorize us (or our third-party payment processor) to charge your Payment Method (as defined below) the Rental Fee. MER reserves the right to alter the Rental Fee or availability of any particular item at its discretion and without notice. [Note: I am not sure what this reserve service is. Couldn’t locate it on their website either. Let me know if this clause is needed otherwise we can delete.]
9. Membership Services
9.1 If you purchase a Membership Service, the subscription fee (“Subscription Fee”) will be the then-current applicable subscription rate (including all applicable taxes and fees) listed on the Membership Service on the date that you sign up for such Membership Service; provided that, if your Membership Service is based on a promotional rate, you will be charged a fee equal to the promotional rate for the duration of the promotion, and, after the expiration of the applicable promotion, you will be charged the applicable rate on a recurring monthly basis, and you authorize us (or our third-party payment processor) to charge your Payment Method (as defined below) the monthly Subscription Fee on a recurring monthly basis. For information on the applicable fees, including any applicable discounts and rental coverage charges listed during the check-out process, please see the “Plans” section of our Site. MER reserves the right to alter the Subscription Fee, availability of certain Membership Services, or availability of any particular item at its discretion and without notice.
10.1 If you purchase a Product through the Services, the purchase price for such Product (“Purchase Price”) will be equal to the purchase fee, applicable taxes and shipping and delivery charges listed on the Service for the applicable Product at the time of purchase. MER, at its discretion and without notice, reserves the right to alter the price of a Product, the amount or availability of any discount, or the availability of any particular item. You authorize us (or our third-party payment processor) to charge your Payment Method (as defined below) for the Purchase Price when you purchase Products and we will charge your Payment Method the amount of the Purchase Price. We do not make, and expressly disclaim, any warranties of any kind with respect to any Product that you purchase, and such Product is provided on an “AS IS” basis.
11. Late Fees
11.1 If you do not return one or more Products (other than Products that you purchase) by the Product Return Date (see the “Returns and Lost Items” section below), you hereby authorize us (or our third-party payment processor) to charge your Payment Method non-refundable late fees for the days that we do not receive every Product that comprises such order, up to the full Original Retail or Comparable Value of the Products (the “Maximum Late Fee” unless otherwise specified in the corresponding FAQ Section(s)) not returned to us plus applicable sales tax. Please see our FAQ Section for the applicable Product Return Dates and the current late fees charged for each day that a Product is not returned.
11.2 If you are charged by MER, and pay the Maximum Late Fee for a Product pursuant to this “Late Fees” section and as described in the corresponding FAQ Section(s), you are permitted to retain the Product; however, we do not make, and expressly disclaim, any warranties of any kind with respect to the Product, and the Product is provided to you on an “AS IS” basis. For the avoidance of doubt, this “Late Fees” section shall not apply to the Rental Fee, or fees paid or payable by you for the non-return of Return Packaging (as defined below), each of which will be charged separately from, and in addition to, any late fees. Additionally, late fees will not apply to any Products ordered using the Membership Services, unless you Cancel or Pause your Membership Services. Payment of any late fees does not excuse your breach of these Terms.
12. MER Packaging
12.1 With the delivery of a Product, MER may provide you with pre-paid, pre-addressed packaging that you can use to return the Product (“Return Packaging”), as well as instructions for returning the Product to MER. You may not keep, sell, or transfer (other than to us) any MER-branded garment bags, accessory bags, and accessory boxes (“MER Packaging”) that we provide to you. If the MER Packaging is not returned prior to the earlier of (i) sixty (60) days after the return of the associated Product or (ii) the termination, cancellation, or expiration of your Account or Paid Services, you hereby authorize us (or our third-party payment processor) to charge your Payment Method a non-refundable non-return fee for each garment bag, accessory bag, and/or accessory box that is not returned to us. After we charge your Payment Method for the MER Packaging that you did not return, you are permitted to retain such MER Packaging; however, we do not make, and expressly disclaim, any warranties of any kind with respect to such MER Packaging, and the MER Packaging is provided to you on an “AS IS” basis. Please see our FAQ Section for the current amount we charge for non-return fees (including for garment bags, accessory bags, and accessory boxes).
13. Other Terms Related to Products and Services
13.1 Use of the Products
13.1.1 You agree to treat the Products with great care. The rental coverage provided by us covers normal wear and tear, but you are responsible for any loss, destruction, or damage to the Products for any reason, including due to theft, loss, mysterious disappearance, fire, major stains, or any other cause. “Normal wear and tear” means minor stains, rips, missing beads, stuck zippers, or other minor damage that is covered by the rental coverage.
13.1.2 If you return a Product that is damaged beyond normal wear and tear as described above, then you hereby authorize us (or our third-party payment processor) to charge you for the price for repairing or replacing the Product, as determined in our discretion, up to the Original Retail or Comparable Value price for the Product. Please see the section on Billing and Payments below on the payment mechanism in relation to return of damaged Products.
13.2 Product and Service Descriptions
13.2.1 We may, in our sole discretion, provide listings, descriptions, or images of Products that are available on the Services, as well as references and links to Products, but we do not warrant that the Product listings, descriptions, or images are accurate, complete, reliable, current, or error-free, or that any Products will be available, even if noted as so on our Services. Such information and the availability of any Product are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer (including a smart phone or similar device) will accurately display such colors. The prices displayed for Products and Services are quoted in U.S. dollars, unless otherwise indicated. Prices and availability for Products on our Reserve Service are not confirmed until the applicable Products are shipped; if the actual price of such a Product is higher than our stated price, or if the Product is no longer available, we will contact you for instructions before shipping or cancel your order and notify you of such cancellation. The availability through the Services of any listing, description, or image of a Product does not imply our endorsement of such Product or affiliation with the provider of such Product.
13.3 Price Comparisons
13.3.1 For most Products, MER will list a higher reference price in conjunction with the lower price at which customers can rent or purchase the Product. We use these pricing terms online and in our app:
“Original Retail” for brand-name items: Brand-name items are typically in excellent condition but have been worn by other MER members. The “Original Retail” price shown next to any brand-name item is the price at which the manufacturer suggested that retailers in the marketplace, including at department stores and specialty retailers, sell the item in new condition. Pricing is not a science, and unlike traditional retailers, items tend to stay on our site for multiple seasons. We therefore cannot guarantee that this price reflects the item’s prevailing market price at any given time in any given geographic region. If this price is an important factor in your purchasing or renting decisions, we encourage you to conduct your own research and comparison shopping.
“Comparable Value” for exclusive items: Exclusive items are typically in excellent condition but have been worn by other MER members. Items listed with “Comparable Value” pricing are part of exclusive clothing lines created just for MER, but may also be sold by other retailers. The Comparable Value price is based on an evaluation of prices for new comparable merchandise sold elsewhere in the marketplace. While pricing is not a science, our Comparable Value comparison prices are based on input from our manufacturer and, in some cases, the product designers, and are reviewed by our experienced team of buyers. Unlike traditional retailers, items tend to stay on our site for multiple seasons. We therefore cannot guarantee that this price reflects the prevailing market price at any given time in any given geographic region for similar items. If this price is an important factor in your purchasing or renting decisions, we encourage you to conduct your own research and comparison shopping.
MER Purchase Price: The purchase price we offer (aka the “to buy” price) is dynamic and based on sophisticated algorithms that consider a broad range of factors, including item-specific rental history, customer trends, the impact of removing an item from rental circulation, and members’ past shopping and purchase history. Generally, any single factor cannot be used to explain the direction or magnitude of a price change.
This information may also be located in our FAQs.
13.4.1 You must provide us with accurate shipping information, so that we can timely deliver Products to you. You are responsible for providing us with accurate shipping information for deliveries and for keeping the shipping information for your Account up-to-date. If you provide us with a shipping address that is invalid or where you cannot securely accept Products upon delivery, or if you do not keep your shipping information up-to-date, you are solely responsible for any resulting loss, theft, or damage to the Products. Following delivery to the designated address, as between you and us, you will be solely responsible for the condition of each Product until you return such Product (including while they are in transit). We reserve the right to reject, cancel, or prohibit any rentals or sales of Products for any reason. Please see our FAQ Section for more information regarding deliveries.
14. Returns and Lost Items
14.1 Returning Purchased Products
14.1.1 Certain purchased Products may be eligible for return, subject to a restocking fee, as will be indicated on our Site and App prior to purchase. To return eligible Products, please see our Return Policy, which is incorporated by reference herein. Such Products must be returned within 7 days of delivery in the same condition in which they arrived to be eligible for a refund. Purchases of Products are intended for personal use by our customers. If we notice an unusual pattern of returns activity, we may terminate or suspend your Account, charge your Payment Method the Original Retail or Comparable Value price of the Product, and/or take other legal action. Purchased Products marked as Final Sale are not eligible for return.
14.2 Returning Rented Products
14.2.1 You agree to return each Product (other than Products that you purchase) to MER by the return date for such Product identified in your online account, immediately when you “mark” an item as returning, and/or the applicable invoice for your order or as otherwise set forth in these Terms (the “Product Return Date”). We may, but are not required to, permit you to extend your rental period for a Product (including by contacting us), subject to prepayment of any additional fees applicable to that Product for the period of time of the extension. Failure to timely return a Product is a violation of our Terms, and we may terminate your Account, charge your Payment Method for Late Fees up to the Maximum Late Fee, and/or take other legal action.
14.3 Lost Items
14.3.1 We are not responsible for any personal or other items left in the Products or which are returned to MER in the Return Packaging. If you believe you have accidentally or otherwise sent any such items to us, please contact customer service as soon as possible at firstname.lastname@example.org. We may, but are not required to, assist you in attempting to locate such items at your request, and we assume no responsibility or liability if we attempt to locate such items. Failure to timely return a Product is a violation of our Terms, and we may terminate your Account, charge your Payment Method for Late Fees up to the Maximum Late Fee, and/or take other legal action.
14.4 Drop-Off Locations
14.4.1 If you are returning a Product using a return scanner at a MER Drop-Off Location, once a Product has been scanned into a kiosk return scanner, you have marked the Product as “returning,” and you must immediately deposit the Product in the return bin provided. Failure to immediately deposit a Product in the return bin at the self-service kiosk at the time that it is scanned into the kiosk is a violation of our Terms, and we may terminate your Account, charge your Payment Method for Late Fees up to the Maximum Late Fee, and/or take other legal action.
14.5 Returning by Mail
14.5.1 If you use the Return Packaging that we provide, you must use the shipping carrier specified on the pre-paid shipping label included with the Return Packaging. MER will not be responsible for loss, theft, or damage to Products that are shipped back to us using any carrier other than the carrier that is specified on our Return Packaging and/or the return label provided for the return of a purchased product (“Return Label”), or for any fees or expenses that you incur due to delays in MER receiving the Product.
14.5.2 In the event that you lose or damage the Return Packaging that we provide, you will be responsible for returning the Product to us in your own packaging, at your own expense. Furthermore, you acknowledge that using any packaging or shipping carriers other than our Return Packaging and the carrier specified thereon may result in delivery delays and additional delivery fees for which MER will not be liable. You will be solely liable for all such delays, Late Fees, additional delivery fees, and any damage to Products.
15. MER Partners
15.1 We may, from time to time, permit you to have rental Products shipped to our third-party partners. If you choose to have rental Products shipped to such third-party partners, notwithstanding anything to the contrary in these Terms, you must return such rental Products, using the Return Packaging, to our third-party partners, unless we expressly permit you to otherwise return the rental Products in accordance with these Terms.
16. Billing and Payments
16.1.1 When you place a rental order for a Product, you hereby authorize MER to charge your payment card or other payment instrument (“Payment Method”) for the Rental Fee. You must ensure that at all times your Payment Method is valid and up-to-date. You are responsible for providing complete and accurate billing and contact information to MER and notifying MER of any changes to such information. MER will charge your Payment Method the amount of the Rental Fee immediately upon your rental order. A reservation of a Product through the Services is an order for the rental of that Product, regardless of how far in advance that Product is reserved. In addition, at the time of your rental order for a Product, you hereby authorize MER to charge your Payment Method for an amount up to the Original Retail or Comparable Value price of the Product set forth on the applicable Service plus applicable sales taxes; provided that MER will only charge your Payment Method for an amount that is greater than the Rental Fee as described in these Terms. Rental Fees exclude all federal, state, and local taxes, goods and service tax, fees, customs, duties, levies, and other governmental assessments, all of which shall be paid by you directly or, if paid by MER, shall be paid by you to MER in connection with your rental order.
16.1.2 We use a third-party payment processor (the “Payment Processor”) to bill you for any Paid Services through a payment account linked to your account (your “Billing Account”). By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen Payment Method. You agree to make payment using that selected Payment Method, but if the Payment Processor is not able to charge your preferred Payment Method, you authorize us to use any Payment Method stored on record for your Billing Account. We reserve the right to suspend or cancel a rental order or terminate your access to the Services in the event that we are unable to successfully charge the provided Payment Method. We are not responsible for errors by the Payment Processor, and we reserve the right to correct any errors or mistakes that we or the Payment Processor make(s) even if we have or our Payment Processor has already requested or received payment. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
16.2 Recurring Billing and Auto-renewal
16.2.1 Some of the Paid Services are offered as a subscription that may consist of an initial period, for which there will be an initial charge, followed by recurring period charges as agreed to by you (“Membership Services”). If you choose a Membership Service, your Payment Method will be charged the then-current applicable rate (including all applicable taxes and fees) on the date that you sign up for such Membership Service. This date is your “Billing Date.” The applicable fee will automatically renew, meaning your Payment Method will be automatically charged the then-current applicable rate for the Membership Service during each subsequent month until you Pause or Cancel (each as defined below) the Membership Service or terminate your Account. Recurring charges will occur on a going-forward basis each month on or about the same date as your Billing Date (however, if your Billing Date does not exist in a given month, you will be billed on or around the last day of that month). The period between your Billing Dates is referred to as a “Billing Period.” As of your first Billing Date, the Membership Services are available to you, subject to these Terms. Your Account will remain active and you will remain eligible to participate in the Membership Services for subsequent Billing Periods after we successfully receive your payment for each applicable Billing Date. If you do not want to continue to be charged on a recurring monthly basis, you must Cancel or Pause the applicable Membership Service or terminate your Account before the end of the then-current Billing Period.
16.2.2 By choosing a recurring Membership Service, you acknowledge that such Paid Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR CANCELLED OR PAUSED THE SERVICES OR YOUR ACCOUNT. Such notice will not affect charges that have already been submitted or are in process.
16.2.3 To change your Payment Method, contact us at email@example.com.
16.3 Information Provided by Customers
16.3.1 You must provide current, complete, and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete, and accurate (such as a change in billing address, credit card number, or credit card expiration date). If your Payment Method is cancelled for any reason (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your User ID or password, you must promptly notify us and update your Payment Method. Changes to such information can be made in your account settings. IF YOU FAIL TO PROVIDE ANY OF THE REQUIRED INFORMATION OR KEEP SUCH INFORMATION UP-TO-DATE, YOU AGREE AND ACKNOWLEDGE THAT WE MAY CONTINUE CHARGING YOU USING ANY PAYMENT METHOD YOU HAVE ON RECORD, FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT, UNLESS YOU HAVE CANCELLED OR PAUSED YOUR PAID SERVICES OR TERMINATED YOUR ACCOUNT IN ACCORDANCE WITH THESE TERMS.
16.4 Payment Authorization
16.4.1 If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state taxes), we shall provide notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each Billing Period.
16.4.2 Your non-termination or continued use of a Membership Service reaffirms that we (and/or our Payment Processor) are authorized to charge your Payment Method for that Membership Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Membership Service.
16.5 Cancel Account or a Membership Service
16.5.1 You may terminate your Account or your Membership Service (“Cancel”) at any time. If you Cancel your Membership Service, you may use the Membership Service until the end of your then-current Billing Period and your membership will not be renewed after the expiration of your then-current Billing Period. You must return all Products in your possession in accordance with these Terms no later than the expiration of your then-current Billing Period or the return date in the applicable online invoice (whichever is earlier) to avoid incurring additional charges, including late fees. Please see our FAQ Section for more information regarding how to Cancel your Account or your Membership Service.
16.5.2 Please note that you will not receive any refunds for amounts already paid for the Membership Services, and you will still be responsible for payment of any fees or charges (including, without limitation, all Rental Fees) incurred by you prior to termination of your Membership Service. Membership Services cannot be terminated before the end of the Billing Period for which you have already paid, and except as expressly provided in these terms, MER will not refund any fees that you have already paid.
16.5.3 MER is also free to suspend, limit, or terminate your access to or use of the Services or your Account, for any reason in our discretion, including your breach of these Terms.
16.6 Charge for return of damaged Products
MER will ask you to pay a security deposit at the time of completing any rental reservations. MER reserves the right to keep the security deposit paid by you for the price for repairing or replacing the Product, as determined in our discretion.
17.1 The following provisions survive expiration or termination of these Terms (or your Account): “Changes,” “Late Fees,” “MER Packaging,” “Returns and Lost Items,” “Your Content,” “Use Restrictions,” “Use of your Content,” “Limitation of Liability,” “Disclaimer of Warranties,” “Indemnity,” “Assignment,” “Choice of Law,” “Arbitration Agreement,” “Taxes,” “Waiver; Severability,” and “Entire Agreement.”
18. Free Trials and Promotions
18.1 Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. At the end of your free trial or promotion, you will be signed up to use the applicable Paid Service and charged in accordance with these Terms, unless you Cancel the Paid Service in accordance with these Terms. Please note that any payment terms presented to you in the process of using or signing up for a free trial or other promotion are deemed part of these Terms.
19.1 Ownership and Use of Intellectual Property
19.1.1 MER Content
(19.1.1.a) We and/or our suppliers and licensors own the Products and Services (including related software, code, data, and information relating thereto), and proprietary methods and systems used to provide the Services (collectively, “Our Property”), the materials, text, graphics, data, articles, photos, images, illustrations, information, and other content made available or displayed by us through the Services (collectively, “Our Materials”), and certain of the trademarks, service marks, names, and logos (“Marks,” and together with Our Property and Our Materials, collectively, “Content”). You agree and acknowledge that the Content is: (i) protected by copyrights, (ii) subject to other intellectual property and proprietary rights and laws, and (iii) owned by us or our suppliers and licensors. Except as expressly permitted in these Terms, Content may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, redistributed, or otherwise used in any way without our prior written permission and the prior written permission of our applicable licensors.
(19.1.1.b) Subject to these Terms, and solely for so long as you are permitted to use the Services, we grant to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited right and license to (a) install, access, and use our App on any single, compatible, personal device that you own or control, and (ii) access and use the other aspects of the Services, in each case solely for your own personal, non-commercial use. The App is licensed (not sold) to you. If you fail to comply with any of the terms or conditions of these Terms, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in or attached to any Content, and that you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize, or otherwise exploit for any purpose any Content. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in these Terms), create derivative works based on, or otherwise exploit any of the Content or Services. You may not use our trade names, trademarks, service marks, or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting any right to use any trade names, trademarks, service marks, or logos without the express prior written consent of the owner.
19.1.2 User Content
(19.1.2.a) Anything that you post, upload, share, store, provide, or otherwise make available through the Services is a “User Submission.” We do not guarantee any confidentiality with respect to your User Submissions, and they may be viewable by others. You are solely responsible for all User Submissions that you submit or otherwise provide to the Services. You represent that (a) all of your User Submissions are accurate, complete, up-to-date, and in compliance with these Terms and all applicable laws, rules, and regulations, and (b) you own or have the necessary rights, licenses, consents, and permissions, without the need for any permission from or payment to any other person or entity, to exploit and to authorize us to exploit your User Submissions in all manners contemplated by these Terms. You waive all moral rights in User Submissions which may be available to you in any part of the world and confirm that no such rights have been asserted. No User Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any User Submissions.
(19.1.2.b) In addition, if you provide to us any ideas, proposals, suggestions, or other materials (“Feedback”), whether related to the Services or otherwise, such Feedback will be deemed a User Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited, and without restriction, and does not place MER under any fiduciary or other obligation.
(19.1.2.c) You hereby grant to MER and our affiliates a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable (through multiple tiers), and transferable (in whole or part) worldwide license to use, edit, truncate, aggregate, reproduce, transmit, display, exhibit, distribute, prepare, index, comment on, modify, create derivative works of, display, perform, and otherwise fully exploit User Submissions in connection the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting, marketing, advertising, and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats (whether now existing or hereafter created or discovered) and through any media channels, whether now existing or hereafter created or discovered (including, without limitation, third-party websites and feeds).
19.2 Use Restrictions
19.2.1 You represent, warrant, and agree that you will not post, upload, share, store, provide, or otherwise make available any User Submission, otherwise access or use the Content, Products or Services or interact with the Services in a manner that:
(19.2.1.a) Infringes, misappropriates, or otherwise violates the intellectual property rights or any other rights of anyone else (including MER);
(19.2.1.b) Violates any law, rules, or regulation, including, without limitation, any applicable export control laws or privacy laws;
(19.2.1.c) Is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, libelous, tortious, obscene, indecent, pornographic, vulgar, unlawful, hateful, or threatening to any group defined by race, religion, gender, national origin, or sexual orientation or otherwise offensive or objectionable, or is for any commercial purpose or is used for any purpose not reasonably intended by MER;
(19.2.1.d) Jeopardizes the security of your or any other MER user’s Account (such as by allowing someone else to log in to your Account);
(19.2.1.e) Attempts, in any manner, to obtain the MER User ID, password, Account, or other security information of or from any other MER user or impersonates any other person, including but not limited to a MER representative;
(19.2.1.f) Violates the security of any computer network, or cracks any passwords or security mechanisms or encryption codes, or introduces viruses, worms, Trojan horses, spyware, or other computer code, file, or program that is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;
(19.2.1.g) Runs a “Maillist,” “Listserv,” any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interferes with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(19.2.1.h) Restricts or prohibits any other person from using the Services;
(19.2.1.i) Frames or mirrors any portion of the Services, or otherwise incorporates any portion of the Services into any product or service, without our express prior written consent;
(19.2.1.j) Removes or obscures any copyright, trademark, or other proprietary notice from the Services;
(19.2.1.k) Uses any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or otherwise gather Site content, or reproduce or circumvent the navigational structure or presentation of the Site, without our express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site’s root directory, MER grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. MER reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
(19.2.1.l) Systematically copies or stores any portion of the Content;
(19.2.1.m) Decompiles, reverse engineers, disassembles or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Products or Services, except to the extent that such restriction is expressly prohibited by applicable law;
(19.2.1.n) Displays material that exploits children under 18 years of age or posts, collects, or discloses any personal information (including names) or private information about such children; or
(19.2.1.o) Posts or transmits any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests or any other businesses or services.
19.2.2 You are also responsible for obtaining, maintaining, and paying for all hardware and all telecommunications and other services needed to access or use the Services. A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
20. Ratings and Reviews
20.1 Our Services may allow you to rate and post reviews of Products. Any ratings or reviews provided by you are considered User Submissions and are governed by these Terms. Ratings and reviews are not endorsed by MER, and do not represent the views of MER or of any affiliate or partner of MER. MER does not assume liability for any ratings and reviews or for any claims, liabilities, or losses resulting from or relating to ratings or reviews. We reserve the right to modify, remove, or exclude any rating and/or review for any reason at any time, without notice.
21. LIMITATION OF LIABILITY
21.1 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE MER PARTIES (AS DEFINED BELOW) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE PRODUCTS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) CANADIAN DOLLARS OR (II) THE AMOUNTS PAID BY YOU TO MER IN CONNECTION WITH THE SERVICES IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. IN CASE THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES IS NOT ALLOWED, THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MER PARTIES DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES AND MER SHALL NOT BE LIABLE FOR ANY INTERRUPTIONS OR ERRORS RELATED THERETO.
22. DISCLAIMER OF WARRANTIES
22.1 Neither MER nor its licensors, suppliers, partners, parent, subsidiaries, or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives, and agents, and each of their respective successors and assigns (MER and all such parties together, the “MER Parties”) make any representations or warranties concerning the Services, including without limitation regarding any content contained in or accessed through the Services or any Products, and the MER Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages, or liabilities arising out of or in any way related to your participation in or use of the Services. We make no warranty that the Products or Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Products, or Services, or that defects in the Products or Services will be corrected. The Services may become unavailable due to maintenance or malfunction of computer equipment or other reasons. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material in any way related to the Services and/or our Content. No advice or information, whether oral or written, obtained by you from us through the Services or otherwise will create any warranty, representation, or guarantee not expressly stated in these Terms.
22.2 TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, PRODUCTS, CONTENT, AND ANY THIRD PARTY MATERIALS ARE PROVIDED BY MER (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS, AND MER HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN CASE LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS IS NOT PROVIDED UNDER APPLICABLE LAW, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
23.1 MER may from time to time engage third-party couriers (“Couriers”) to facilitate delivery of Products. Couriers are independent contractors and not employees, partners, agents, joint ventures, or franchisees of MER. MER shall not be liable or responsible for any delivery services provided by Couriers, or any errors or misrepresentations made by any of them. If you opt to have Products delivered by Courier, you agree to bear responsibility for receipt of Products shipped to the delivery location specified at time of check out. MER highly recommends that you provide a secure location where you can physically receive Product(s) (including from a Courier), and MER does not bear liability for Products left unattended, by you, a Courier, or otherwise. You hereby acknowledge that MER does not supervise, direct, control, or monitor a Courier’s provision of services. Any interactions or disputes between you and a courier are solely between you and that courier. MER and its licensors shall have no liability, obligation or responsibility for any interaction between you and any courier.
24. Consent to Receive Periodic Messages
24.1 By using the Services, you consent to receiving communications from us, including informational text messages (such as for purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, and providing other transactional information) to the phone number that you provide by any means, including through an automated telephone number dialing system. You represent and warrant that you are the owner of the phone number that you provide when you create an Account. Standard text messaging and data rates charged by your mobile carrier may apply to the text messages we send you, and any and all such charges, fees, taxes, or costs are your sole responsibility. You may opt out of receiving communications by following the unsubscribe procedures we provide to you. In the case of text messages, you may opt out by replying “STOP” to a text message you receive from us or by emailing firstname.lastname@example.org. You acknowledge that opting out of receiving communications may impact your use of the Services. Please note also that you will need to opt out of communications for each Service that you sign up for. You agree to indemnify and hold MER harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
25.1 You agree to indemnify and hold the MER Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, fees, and expenses (including attorneys’ fees) arising from or in any way related to any claims, suit, action, or demand (“Claims”) relating to (i) your access to and use of the Services (including any actions taken by a third party using your account) and any Products rented from us (including any failure to return such Products), (ii) your User Submissions, (iii) your violation of these Terms, or any applicable law, rules, or regulation, (iv) your infringement, misappropriation, or other violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, and (v) any dispute or issue between you and any third party, including any Courier, Product merchant, or other third party. In the event of such Claim, we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
26. Choice of Law
26.1 These Terms are governed by and will be construed under the laws of the Canada and the laws of the State of Ontario, without regard to the conflicts of laws provisions thereof.
27. Arbitration Agreement
27.1 You and MER acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, MER’s officers, directors, employees, and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
27.2 The parties shall make best endeavours to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, such dispute shall be finally settled by binding arbitration in accordance with this clause.
27.3 The arbitration will proceed in the English language, in accordance with the Canadian Arbitration Association under its rules, as amended by this clause (to the extent permissible under the rules of the Canadian Arbitration Association) (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
27.4 Small Claims Court; Infringement: Notwithstanding the foregoing obligation to resolve disputes using arbitration, both you and MER may assert claims, if they qualify, in small claims court in Toronto or any Canadian city injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
27.5 Exclusive Venue: In any circumstances where the foregoing permits either you or MER to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing will not apply to either party, and both you and MER agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in Toronto, Ontario.
28.1.1 We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that MER does not endorse any of the products or services listed on such site.
28.2.1 You will be responsible for paying, withholding, filing, and reporting all federal, state, and local goods and services taxes, duties, customs, duties, levies, and other governmental assessments associated with your activity in connection with the Services (including any purchase or rental of any Products and Membership Services), provided that MER may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit in accordance with applicable law.
28.3 Waiver; Severability
28.3.1 The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.
28.4.1 There may be delays, omissions, or inaccuracies in the Services, including the Content. The Services may become unavailable due to maintenance or malfunction of computer equipment or other reasons. You agree that MER is not, and will not be, liable for any such delays, omissions, inaccuracies, or unavailability.
28.5 Entire Agreement
28.5.1 You and MER agree that these Terms are the complete and exclusive statement of the mutual understanding between you and MER, and that these Terms supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of MER, and you do not have any authority of any kind to bind MER in any respect whatsoever.
28.6.1 You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Account, in any way (including by operation of law or otherwise) without MER’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations (in whole or in part) without your consent or notice to you.
29. Information or Complaints
29.1 If you have any questions or complaints regarding the Services or about these Terms, you may contact us at email@example.com. For any questions related to Services or Products, please contact us at firstname.lastname@example.org. Please note that email communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your email correspondence with us.