Legal terms you need to know
1.3. Arbitration and Remedies. These Terms contain provisions that require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute. See Section 30 (Dispute Resolution) for full details.
4.1. By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.
4.2. Corporate Use. If you are using the Service on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
- Marketplace Platform.
5.1. MO serves as a platform for users who comply with the Agreement to list, sell, and buy certain items from each other. Users of the Service (“Sellers”) can list goods for sale and other users of the Service (“Buyers”) can purchase those goods (“Product Listing(s)”). The actual transaction or sales contract for an item listed in a Product Listing is solely between the Seller and the Buyer.
5.2. Our Limited Role; Disclaimer for Product Listings. MO’s role is limited because it is not directly involved in marketplace sales. Without limitation, MO does not guarantee that it will pre-screen Sellers or Buyers. Nor does MO guarantee the identity of any user. MO does not necessarily prescreen the content and/or information provided by users. MO does not directly control the quality of any aspect of the items listed or the Seller services and logistics associated with the sale, including the accuracy of any content related to any Product Listing. MO does not guarantee that any user, Buyer or Seller, will complete transactions. Unless stated otherwise in this Agreement, Sellers are responsible for product warranties and customer service, and Buyers are responsible for conducting their own due diligence. MO does not take or transfer ownership of items or liability attaching thereto. You understand that we are a listing service and have no responsibility for the content, accuracy, completeness, or lawfulness of any Product Listing that is sold by Sellers. MO does not guarantee that any Buyer or Seller will fulfill any statements published through the Service about any Product Listing. MO does not take or transfer ownership of items or liability. Under Section 230 of the Communications Decency Act and similar laws, MO is a platform service and not the publisher or speaker of any third-party content, including Product Listings. For additional information, please carefully review Section 27 (Disclaimers; Limitation of Liability).
5.3. Sellers’ and Buyers Responsibilities. Unless stated otherwise in this Agreement, Sellers are solely responsible for any applicable taxes; return policies, returns, replacements, and refunds; product and service warranties; and customer service associated with the sale of and/or purchase of any Product Listing. Buyers are solely responsible for conducting their own due diligence regarding any Product Listing.
Subject to your compliance with the terms and conditions of this Agreement, MO grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the Website and to use the Service. The Service, including any portion of the Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior, express written consent of MO. All rights not expressly granted herein are reserved by MO. Without limitation, this Agreement grants you no rights in or to the intellectual property of MO or any other party, except as expressly set forth herein. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate if, in our sole judgment, you have breached any provision of this Agreement.
- Health Disclaimers.
7.1. No Professional Medical Service or Advice. MO provides the Website for informational purposes only. The Website does not contain or constitute, and should not be interpreted as, medical advice or opinion. MO is not a medical professional and does not provide medical services or render medical advice. The Website and Service are not a substitute for the advice of a medical professional, and the information made available on or through the Website and Service should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, you should consult a medical professional.
7.2. No Doctor-Patient Relationship. Your use of the Website does not create a doctor-patient relationship between you and MO.
7.3. No FDA or Other Government Review. Statements on the Website have not been evaluated by the Food and Drug Administration.
7.4. Not for Treatment of Disease. The products sold on the Website are not intended to diagnose, treat, cure, or prevent any disease.
7.5. Consult Your Physician. You hereby agree that, before using the Website and Service, you shall consult your physician, particularly if you are at risk for problems resulting from exercise or changes in your diet.
- Payments; Fees; Membership.
8.1. Payments. You agree to pay MO all fees associated with your use of the Service (“Fees”), as indicated to you at the time you agree to such Fees (for example, during the checkout process). All transmissions of payment information through the Website are secured with Internet-standard TLS (also known as HTTPS) encryption. MO may collect your name, address, and payment information to process your order. You may also optionally provide your credit card and payment information by telephone.
8.2. Membership Fees. MO may, at its sole discretion, offer access to certain parts of the Service or related services upon a subscription basis. If you enroll in a subscription plan or “Membership”, you will be billed according to the terms of the Membership as displayed to you at the time you first enroll (“Membership Terms”).
8.3. Automatic Renewal. At the time you enroll in your Membership, you will be required to provide payment card information to pay for the associated Fees. If you choose to enroll in a Membership, you understand and agree that your credit or debit card on file will be charged Fees for additional Membership periods (e.g., once per year) without obtaining further permission or confirmation from you. In other words, your Membership renews automatically unless cancelled in advance of the next payment period by you. Please pay attention to the Fees, payment terms, and disclosures provided during the order profess for your Membership. Membership packages renew automatically unless you cancel by contacting MO at the following email address: [email protected].
8.4. Changes and Cancellation. To change or cancel your Membership, you may either cancel on the Website or email MO at [email protected] If you choose to change or cancel your Membership by email, you must provide MO sufficient information to identify your account, such as your username, real name, billing address, and the email address associated with the account. Changes and cancellations must be made at least 7 days before your credit or debit card is charged for the next Membership payment in order to avoid said payment.
8.5. Changes in Fees. You acknowledge and agree that MO reserves the right to charge for access to the Service, in accordance with the policies stated in this Section, and subject to amendment as specified in this Agreement. MO reserves the right, in MO’s sole discretion, to change the fees and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds, nor are there credits for partially used membership periods. MO’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including without limitation the collection of regularly recurring Fees from you, shall not affect MO’s subsequent ability to exercise such right or require such performance at any later time. Nor shall MO’s waiver of your breach constitute MO’s waiver of any later breach by you or any other user of the Service. By using the Service, you authorize MO, and/or its payment processor, to charge MO’s fees to the credit card, debit card, or other payment method you provide, in addition to applicable sales taxes and other taxes.
8.6. Limited Period to Challenge Discrepancies. Your marketplace payments are tracked by MO and visible to you. In the event of a discrepancy pertaining to completed purchases and commission payment, you have 10 business days from the date of the completed purchase to send notification to MO about the discrepancy, after which all payments or lack of payments are otherwise final and no longer subject to change. You agree to waive, and hereby waive, any claims arising from such discrepancies by failing to provide timely written notification to MO within the ten (10) business day time period. You can notify MO of discrepancies only by sending an email to [email protected] detailing the amount owed to you and the amount tendered to you.
9.1. You will be provided with an estimated shipping quote for your order when you have completed shopping on the Website.
9.2. Most orders are shipped the same or next day.
9.3. UPS and other shipping providers do not deliver on weekends or holidays. Do not include these days when estimating your expected delivery date.
9.4. We will charge you a $10.00 fee for shipments that are either re-routed after leaving our warehouse or are incorrectly addressed due to your error. Shipping labels are generated directly from the shipping information you have entered. If you provide us an incorrect zip code or other addressing error, for example an incorrect or missing apartment number, you will be charged the $10.00 fee because the shipping company will charge us a fee for this correction.
10.1. Before returning a product, you must receive a return authorization number from MO or the Seller.
10.2. To obtain a return authorization number, you must report all problems with your order within 24 hours of receiving your order.
10.3. All returns must have the return authorization number visible on the package. Orders sent back without a return authorization number will be refused.
10.4. You must ship returns to MO within 14 days of your report.
10.5. We do not accept any returns on merchandise that has been opened.
10.6. A 25% restocking fee will be charged on all returns.
10.7. Shipping charges will not be refunded.
10.8. Any damaged product must be received by us before any credits are given or replacement product is shipped.
10.9. We cannot warranty the condition of nutritional bars or snacks against damage caused by excessive heat. While these bars remain refrigerated in our warehouses, UPS trucks and shipping hubs are not refrigerated, and therefore we do not accept any returns on nutritional bars due to heat-related problems. Please keep this in mind when ordering these products.
- No Reliance on Third Party Content.
Opinions, advice, statements, or other information made available by means of the Service by third parties are those of their respective authors and should not necessarily be relied upon. Those authors are solely responsible for their content. MO does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party by means of the Service. Under no circumstances will MO be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
- Assumption of Risk; Release. You knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Beyondsupplements.com, LLC and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the “Company Parties”) from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.
- User Account, Accuracy, and Security.
13.2. Pseudonyms. MO will allow you to use a pseudonym on your profile and in communications with other users through the Service.
- Interactions with Other Users. You are solely responsible for your interactions with other users. You acknowledge and understand that MO has not, and does not, in any way guarantee that it will: (a) screen its users; (b) inquire into the backgrounds of its users; or (c) review or verify the statements of its users. You hereby agree to exercise reasonable precaution in all interactions with other users, particularly if you decide to meet another user or users in person. MO does not represent, warrant, endorse or guarantee the conduct of its users. In no event shall MO be liable for indirect, special, incidental, or consequential damages arising out of or relating to any user’s conduct in connection with such user’s use of the Service, including, without limitation, bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or any other damages resulting from communications or meetings between users.
- Consent to Receive Electronic Communications from Company.
Without limitation, by registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you hereby expressly consent to receive electronic and other communications from MO, over the short term and periodically, including email and short-message service (“SMS” or “text message”) communications, regarding the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to [email protected].
- Consent to Receive Electronic Communications from Users.
- Application and Registration for Merchant Account.
In order to engage in any activity through which you derive a commercial benefit or pecuniary gain from your use of the Service (“Commercial Activity”), you are required to first to register for a special merchant account (“Merchant Account”). During the registration process of your Merchant Account, you agree to abide by all the terms and conditions of this agreement.
Merchant Accounts are generally not transferable. Merchant Accounts provide access to the tools and resources that Sellers use for their Product Listings and to manage their orders. Every Seller on MO must have a Merchant Account and agree to the Merchant Account Addendum that establishes the terms under which the Seller lists and sells their products.
If the ownership of a business changes for any reason, the new owner needs to establish a new seller account. If the ownership of a business isn’t changing, but the individuals responsible for managing the Merchant Account have changed, you can add users to the account.
You agree not to engage in any Commercial Activity unless and until MO grants your application for registration of a Merchant Account.
- Third Party Websites. The Service is linked with the websites of third parties (“Third Party Websites”), some of whom may have established relationships with MO and some of whom may not. MO does not have control over the content and performance of Third Party Websites. MO has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, MO does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. MO disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.
- User Content.
21.1. User Content Defined. “User Content” is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that you submit, upload, and/or post to, or transmit, display, perform, or distribute by means of the Service, whether in connection with your use of the Service or otherwise. This includes, without limitation, personal photos and videos, articles, and coupons. Through the Service, you may post, upload, transmit, publish, and communicate User Content, including listings, messages, comments, reviews, and photos. You are required to use common sense and are prohibited from posting any User Content that infringes on the intellectual property rights of others, is illegal, obscene, threatening, defamatory, invades the privacy of others (e.g., doxing), contains a commercial solicitation or other form of “spam” messages, or otherwise violates the Prohibited Conduct section below. If you do one of these things, we may remove your Content—but we have no obligation to do so and we do not review User Content as a matter of practice.
21.2. You Own Your User Content. MO does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to your User Content.
21.3. License of User Content. By submitting, uploading, or posting User Content in any form with, through, or to the Service, you thereby grant the Company Parties a royalty-free, perpetual, non-exclusive, unrestricted, fully paid-up, worldwide, sublicensable, revocable (as set forth in Section 6 (License) of this Agreement), assignable license to copy or otherwise reproduce, modify, adapt, translate, distribute, enhance, transmit, publicly display or perform, reformat, and/or otherwise use User Content in connection with the operation of the Service, or any other similar or related business, in any medium now existing or later devised, including without limitation in advertising and publicity. You further agree that the Company Parties may publish or otherwise disclose your personal information in connection with their exercise of the license granted under this section. You agree to waive, and hereby waive, any claims arising from or relating to the exercise by the Company Parties of the rights granted under this section, including without limitation any claims relating to your rights of personal privacy and publicity. You will not be compensated for any exercise of the license granted under this Section.
21.4. Your Representations About User Content. You hereby represent and warrant that you: (a) own all rights, title, and interest in and to any and all User Content you submit, or are otherwise authorized to grant the rights provided the Company Parties under this section, OR (b) have written consent, release, and/or permission of each and every identifiable individual person in any User Content you submit to use the name and likeness of each and every such identifiable person in the User Content. You agree that you will not submit any User Content that does not fully comply with MO’s prohibitions against Objectionable Content, as detailed in Section 24 (Objectionable Content).
21.5. Company’s Right to Reject User Content. MO reserves the right, in its sole discretion, to reject any User Content for any reason. The categories specified in Section 24 (Objectionable Content) and Section 25 (Prohibited Uses) are not exhaustive lists of content that MO reserves the right to remove or deny.
21.6. Indemnification for Content. You are responsible for your User Content and, as such, you agree to defend, indemnify, and hold harmless MO from and against any and all claims, actions, demands, causes of action, and other proceedings including but not limited to legal costs and attorney’s fees, arising out of or relating to your User Content.
- Public Forums.
22.1. A “Public Forum” is any area, site, or feature offered as part of the Service (including without limitation blogs, photo and video sharing, and personal messaging features) that enables you (a) to upload, submit, post, display, perform, distribute, and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other users or other visitors. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything you upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, you have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum and for the consequences of submitting or posting same. MO disclaims any perceived, implied, or actual duty to monitor Public Forums and specifically disclaims any responsibility or liability for information provided thereon.
- Your Responsibility for Defamatory Comments.
23.1. You agree and understand that you may be held legally responsible for damages suffered by other users or third parties as the result of your remarks, information, feedback, or other content posted or made available through the Service that is deemed defamatory or otherwise legally actionable. Under Section 230 of the Federal Communications Decency Act of 1996, MO is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available through the Service.
23.2. If you raise or file any claim against MO for conduct that a Court of Competent Jurisdiction subsequently finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent thereof, you agree to fully and immediately compensate MO for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If you fail to compensate MO for any such claim, you hereby agree and authorize MO to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.
- Prohibited Uses. MO imposes certain restrictions on your use of the Service. You agree that you will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to MO or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection, or association with, any person or entity; (d) modify or change the placement and location of any advertisement posted through the Service; (e) harvest or otherwise collect information about MO users, including email addresses and phone numbers; (f) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third Party Websites; (g) access content or data not intended for you, or log onto a server or account that you are not authorized to access; (h) attempt to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breach security or authentication measures without proper authorization; (i) interfere or attempt to interfere with the use of the Service by any other user, host, or network, including without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (j) use the Service to send unsolicited email, including without limitation promotions or advertisements for products or services; (k) forge any TCP/IP packet header or any part of the header information in any email or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Service; (l) while using the Service, use “ad blocking” software or similar built-in web browser options designed to hide, block or prevent the proper display of online advertising; or (l) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable. Any violation of this section may subject you to civil and/or criminal liability.
- Intellectual Property.
26.1. Compliance with Law.
26.1.1. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
26.1.2. You hereby represent and warrant that you are the sole and exclusive owner of any User Content that you submit through the Service. You shall be solely responsible for any violations of any laws and for any infringements of third-party rights caused by your use of the Service. MO users bear the sole burden of proving that content, information, or other materials do not violate any laws or third-party rights.
26.2. Trademarks. MO Marketplace and the MO Marketplace logo (collectively, the “Company Marks”) are trademarks or registered trademarks of MO. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in or to, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of MO, and you agree to assign, and hereby do assign, all such goodwill to MO. You shall not at any time, nor shall you assist others to, challenge MO’s right, title, or interest in or to, or the validity of, the Company Marks. Additionally, you understand and agree that you are prohibited from using Company Marks in any advertisements or marketing materials you produce to promote your Product Listings on the Website.
26.3. Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the MO Marketplace logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by MO or are the property of MO’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in or to any such materials.
26.4. DMCA Policy.
26.4.1. As MO asks others to respect MO’s intellectual property rights, MO respects the intellectual property rights of others. MO follows the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA”).
26.4.2. If you believe content located on or linked to by the Service violates your copyright, you are encouraged to please immediately notify MO by means of an emailed DMCA takedown notice (“Infringement Notice”), providing the information described below. If MO takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available by means of the most recent email address that party provided to MO.
26.4.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. (See 17 U.S.C. § 107, available at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14, 2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.) If you are not sure if content located on or linked to by the Service infringes your copyright, you should first contact an attorney.
26.4.4. The DMCA requires that all Infringement Notices must include the following:
126.96.36.199. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
188.8.131.52. An identification of the copyright claimed to have been infringed;
184.108.40.206. A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit MO to find and positively identify that material;
220.127.116.11. Your name, address, telephone number, and email address; and
18.104.22.168. A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
26.4.5. Infringement Notices should be sent to our Copyright Agent at [email protected] with the subject line “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME)”.
26.4.6. MO will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
26.4.7. Disclosure. All received Infringement Notices may be posted in full to the Chilling Effects Clearinghouse (https://chillingeffects.org/).
- Disclaimers; Limitation of Liability.
27.1. No Warranties. MO, on behalf of itself and its licensors and suppliers, hereby expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither MO nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free. MO disclaims all implied liability for damages arising out of the furnishing of the Service pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Service, whether caused by acts of commission or omission, or any other damage occurring. MO shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of MO, Company Parties, or MO users, or their agents or representatives.
27.2. Your Responsibility for Loss or Damage; Backup of Data.
27.2.1. You agree that your use of the Service is at your sole risk. You will not hold MO or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
27.2.2. Importantly, you hereby acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.
27.3. Limitation of Liability. In no event shall MO or its licensors or suppliers be liable to you for any claims arising from your use with the Service, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to MO or its licensors and suppliers arising out of or in connection with your use of the Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between MO and you. The Service would not be provided without such limitations.
27.4. Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and MO or between you and any of MO’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. MO’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.
- Your Representations and Warranties. You represent and warrant that your use of the Service will be in accordance with this Agreement and any other MO policies, and with any applicable laws or regulations.
- Indemnity by You.
29.1. Without limiting any indemnification provision of this Agreement, you (the “Indemnitor”) agree to defend, indemnify, and hold harmless MO and the Company Parties (collectively, the “Indemnitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, “Claim”, and collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to MO, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and MO, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to MO or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
29.2. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Company Parties.
29.3. Without limitation, the Indemnitor also hereby agrees to compensate MO for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 25 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.
- Dispute Resolution.
30.1. Binding Arbitration.
30.1.1. If you and MO cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).
30.1.2. You hereby acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action. Arbitration is an alternative dispute resolution procedure that is often faster and more final than litigating a matter in court. By agreeing to arbitration, we are each giving up our right to sue in court or to have a jury trial.
30.1.3. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
30.1.4. The arbitration shall be commenced and conducted through JAMS (www.jamsadr.com) under its Streamlined Rules, as modified by this agreement to arbitrate. All remedies available to the parties under applicable federal, state, or local laws shall remain available in arbitration. This arbitration agreement is reciprocal, and any election to arbitrate by one party shall be final and binding on the other. If JAMS is unavailable to arbitrate a dispute or claim, you and MO agree to arbitrate using an alternative arbitral forum. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. The arbitrator’s award will consist of a written statement stating the disposition of each Claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Either party may litigate for injunctive relief in aid of arbitration, to compel arbitration in a federal or state court in Indiana to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. This arbitration provision does not limit any right you may have to file an action for a public injunction. This arbitration provision is severable.
30.2. Restrictions Against Joinder of Claims.
30.2.1. You and MO agree that any arbitration shall be limited to each Claim individually. You and MO hereby agree that each may only bring claims against the other in your or MO’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
30.2.2. If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
30.3. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude you or MO from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or MO from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of Massachusetts.
30.4. Venue for any Judicial Proceeding.
30.4.1. This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of Massachusetts, and shall be governed by and construed in accordance with the laws of the State of Massachusetts without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
30.4.2. The proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in or nearest to Boston, Massachusetts. The parties hereby stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.
31.1. By Company. Without limiting any other provision of this Agreement, MO reserves the right to, in its sole discretion and without notice or liability, deny use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
31.2. Automatic Termination Upon Breach by You. This Agreement shall automatically terminate if you breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic and shall not require any action by MO.
31.3. By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to MO notice of your intention to do so, in the manner required by Section 32 (Notices).
31.4. Effect of Termination.
31.4.1. Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Service. Upon termination, MO may, but has no obligation to, in MO’s sole discretion, rescind any services and/or delete from MO’s systems all your Personal Information and any other files or information that you made available to MO or that otherwise relate to your use of the Service. Upon termination, you shall cease any use of the Service.
31.4.2. Termination upon your breach of any of this Agreement’s representations, warranties, or covenants will also result in marketplace payments being terminated in the sole discretion of MO, and your marketplace payments will not survive termination of this Agreement in the sole discretion of MO.
31.4.3. Subsequent to termination, MO reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
31.5. Legal Action. If MO, in MO’s discretion, takes legal action against you in connection with any actual or suspected breach of this Agreement, MO will be entitled to recover from you as part of such legal action, and you agree to pay, MO’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
- Notices. All notices required or permitted to be given under this Agreement must be in writing.
32.1. MO shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to MO. You agree that any notice received from MO electronically satisfies any legal requirement that such notice be in writing.
32.2. You bear the sole responsibility of ensuring that your email address on file with MO is accurate and current, and notice to you shall be deemed effective upon the sending by MO of an email to that address.
32.3. You shall give any notice to MO by means of email to [email protected].
33.1. Entire Agreement. This Agreement constitutes the entire agreement between MO and you concerning your use of the Service.
33.2. Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion hereof, which shall remain in full force and effect, and the parties hereby acknowledge and agree that they would have executed the remaining portion hereof without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
33.3. Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of MO, or by the unilateral amendment of this Agreement by MO along with the posting by MO of that amended version.
33.4. No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any subsequent breach.
33.5. Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of MO. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
33.6. Independent Contractors. You and MO are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
33.7. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; MO’s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 11 (No Reliance on Third Party Content), Section 20 (Third Party Websites), Section 27.4 (Application of Disclaimers).
33.8. Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to MO and MO’s licensors and suppliers, and would therefore entitle MO or MO’s licensors or suppliers, as the case may be, to injunctive relief.
33.9. Headings. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.