Retailer Terms of Service

Last Updated: May 31, 2018

INTRODUCTION

These Terms of Service (the “Terms”) cover your use of and access to (a)  https://grow.lovingly.com and its associated domains (the “Site”) and (b) our online point-of-sale platform, floral shop management system and related cloud services (“Lovingly Account Services” and, together with the Website, the “Services”).

BINDING AGREEMENT

The Terms form part of a binding contract between you and Lovingly, LLC (“we,” “us” or “Lovingly”). By using or accessing Lovingly Account Services, you are agreeing to the Terms, our Privacy Policy https://www.lovingly.com/legal/privacy-policy, and our Data Processing Addendum https://www.lovingly.com/legal/dpa (collectively, this “Agreement”). If you use or access the Services in your capacity as a representative or employee of an organization, you agree to this Agreement on that organization’s behalf and you represent and warrant that you have the authority do so. References to “you,” “your” or similar terms in this Agreement refer to the individual or organization agreeing to the Terms. The Terms may also refer to you as “Retailer.” IF YOU DO NOT ACCEPT THIS AGREEMENT, WE DO NOT GRANT YOU ANY LICENSE OR USE RIGHTS HEREUNDER, AND YOU MUST NOT USE OR ACCESS THE SERVICES.

ACCESSING THE SERVICES

Registration

To use or access Lovingly Account Services, you are required to register for a user account (“Retailer Account”). You agree to provide us with accurate, complete and updated information with respect to your Retailer Account. If you provide, or if we have reasonable grounds to suspect that you have provided, any information that is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Retailer Account and to refuse your current or future use of the Services (or any portion thereof).

Corporate Account Control

If you create an Retailer Account as a representative of or on behalf of an organization (e.g. by using a corporate email address), your organization will be entitled to control and modify that Retailer Account and to otherwise exercise its rights under this Agreement. If your organization elects to replace you as the representative with ultimate authority for the Retailer Account, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or your organization to facilitate the transfer of authority to a new representative of the organization.

Account Security

You agree to safeguard your Retailer Account and to make sure that others do not have access to your Retailer Account or password. You are solely responsible for any activity on your Retailer Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Retailer Account. You must immediately notify us if you know or have any reason to suspect that your Retailer Account has been accessed without your authorization or that your Retailer Account or password has been stolen, misappropriated or otherwise compromised.

Eligibility

You must be 18 years of age or older to use the Services. If you are under the age of 18, please discontinue use of the Services. Lovingly reserves the right to ask for proof of age and to withhold or terminate your use of the Services if you are below the specified age requirement. Registration for or use of the Services is void in any jurisdiction where prohibited. You represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. If you are representing a corporation or other legal business entity, you hereby represent and warrant that such entity is validly formed and existing under the laws of its jurisdiction and that you are duly authorized as its agent to bind it to this Agreement.

Geographic Limitations

Accessing or using the Services may be prohibited or restricted in certain countries. If you access or use the Services from outside of the United States, you are responsible for complying with the laws and regulations of the country, territory or jurisdiction from which you access or use the Services. By accessing or using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, as the case may be, any person, organization or country which the United States has (i) identified as a “Specially Designated National,” (ii) placed on the Commerce Department’s Table of Deny Orders or (iii) specified as the target of a commercial embargo.

YOUR CONTENT

Customers and Agents

For the purposes of this Agreement, a “Lovingly Store” is an eCommerce website that we have created for a Retailer pursuant to a “Lovingly Store Services Agreement” with that Retailer. A “Customer” is any individual or entity that browses, inquires about or purchases products or services associated with your Lovingly Store by using the Services either directly or indirectly through you or your employees, contractors or agents (collectively, your “Agents”).

You Are Responsible for Your Content

You hereby acknowledge that you, your Agents, or your Customers may send, receive, upload, retrieve, or otherwise transmit or recover, information, images, text, files, materials, content and other data (collectively, “Retailer Content”) to or from the Services. You bear the sole and entire responsibility for the accuracy, reliability, usefulness, completeness, and contents, of any and all such Retailer Content, including but not limited to any loss, liabilities or damages that arise or result from Retailer Content.

Your Rights in Retailer Content

By providing or otherwise making available any Retailer Content in connection with the Services, you hereby represent and warrant that you or your Agents own or have the necessary rights to, send, upload, transmit, provide or otherwise provide the Retailer Content to the Services, and the provision of the Retailer Content to, and use of the Retailer Content by, with, or through the Services will not violate or infringe any third party intellectual property rights, or other rights, including but not limited to privacy, copyright, patent, trademark or trade secret rights, nor will it violate the terms of any agreement between you and a third party, including but not limited to any non-disclosure or confidentiality agreement.

Our License to Retailer Content

When you upload or provide Retailer Content to the Services, you grant Lovingly (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that the Retailer Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute the Retailer Content for the limited purposes of allowing us to provide, improve, promote and protect the Services. This paragraph does not affect any rights you may have under applicable data protection laws. Upon your termination of the Services, you may request that your Retailer Content (excluding Customer payment information and purchase history) be exported from the Services for your use. Lovingly may charge a fee for such exportation services, in its sole discretion.

Featuring Your Store

We may choose to feature certain Lovingly Stores or names, trademarks, service marks or logos included on those Lovingly Stores. You grant us a perpetual, worldwide, royalty-free, non-exclusive right and license to use any version of your Lovingly Store, or any portion of your Lovingly Store, including without limitation names, trademarks, service marks or logos on your Lovingly Store, for the limited purpose of marketing and promoting the Services. For example, we may feature your Lovingly Store on our website or social media accounts. You waive any claims against us relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in or to your Lovingly Store or names, trademarks, service marks or logos on your Lovingly Store and any right of inspection or approval of any such use. You can opt out of being featured by sending a message to help@lovingly.com. This paragraph does not affect any rights you may have under applicable data protection laws.

PROHIBITED USES

Legal Use

You represent and warrant that your use of the Services is not contrary to law, including, without limitation, applicable privacy laws, export or import controls and sanctions. You may not use the Services where prohibited by law.

Unowned or Unlicensed Content

You represent and warrant that you own all rights to your Retailer Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your Retailer Content via the Services and in the manner required by this Agreement. If we use your Retailer Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Other content on the Services may be protected by others’ intellectual property, trade secret or other rights. You shall not copy, upload, download or share content unless you have the right to do so.

Interfering with the Services

You agree not to interfere with or disrupt the Services or servers, networks or devices connected to the Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You shall not inject content or code or otherwise alter or interfere with the way any of the Services are rendered or displayed in a user’s browser or device. In addition, you agree not to:
  1. probe, scan or test the vulnerability of any system or network;
  2. breach or otherwise bypass any security or authentication measures;
  3. access, tamper with or use non-public areas or parts of the Services, or shared areas of the Services that Lovingly has not invited you to access;
  4. take apart, decompile or reverse engineer any part of the Services in an effort to access things such as source code or algorithms;
  5. access, search or create accounts for the Services by any means (for example, scraping, spidering or crawling) other than our publicly supported interfaces;
  6. take action that imposes an unreasonable load on our infrastructure or that of our third party providers (where Lovingly reserves the right to determine what is reasonable or unreasonable); and
  7. provide your password to any other person, use any other person’s username and password, or otherwise manage the Services through shared credentials (unless such management explicitly approved by Lovingly).

Spamming and Phishing

You agree not to use our Services to send spam, emails that violate The CAN-SPAM Act or other laws, emails to people who have not explicitly consented (where such consent is required) or other unsolicited communications (bulk or otherwise), promotions or advertisements. We reserve the right to determine what constitutes spam. You also agree not to send altered, deceptive or false source-identifying information (including any misleading or incorrect names, email addresses or subject lines), including, without limitation, phishing or spoofing.

Deceptive, Fraudulent and Criminal Behavior

You agree not to: (1) use the Services to act in a way that is false, fraudulent, inaccurate or deceiving; (2) impersonate another person, company or entity; or (3) engage in misleading or unethical marketing or advertising. You agree not to: (1) use unauthorized credit cards, debit cards or other unauthorized payment devices on the Services; (2) promote or advertise products or services other than your own without appropriate authorization; (3) sell the Services unless specifically authorized to do so by Lovingly or (4) publish or use the Services on any network or system other than those provided by Lovingly unless previously authorized to do so by Lovingly. You agree not to infringe or misappropriate anyone’s copyright, trademark or other intellectual property rights or to violate anyone’s privacy or publicity rights. You agree not to: (1) threaten, harass or abuse any individuals; (2) incite violence; (3) publish sexually explicit or obscene material; (4) condone or promote self-harm; (5) condone or promote violence against any person or group based on race, ethnicity, nationality, religion, gender, gender identity, sexual preference, age or disability; or (6) violate any laws through your use of the Services, including, without limitation, all local laws regarding online conduct and acceptable content.

Consequences of Prohibited Use

If we conclude, at our sole discretion, that you have misused the Services, we may take action against your Retailer Account or your Lovingly Store. We do our best to ensure fair outcomes, but in all cases, we reserve their right to remove any content or suspend or terminate your Retailer Account or your Lovingly Store without any refund of any amounts paid for the Services, without liability or notice to you, at any time and for any reason (except where prohibited by applicable law). You may report violations of these guidelines directly to Lovingly by emailing help@lovingly.com.

RETAILER’S RESPONSIBILITY TO CUSTOMERS

You understand and agree that your Customers are your responsibility and you are solely responsible for compliance with any laws or regulations related to your products, services or Customers. Lovingly is not liable for, and will not provide you with any legal advice regarding, your products, services or Customers. This paragraph does not limit or affect any liability we may have to the Customer separately for any breach of any separate obligation we have to them.

THIRD PARTY SERVICES, SITES AND CONTENT

Third Party Services

The Services are integrated with various third party services and applications (collectively, “Third Party Services”) that may allow you to access their content and products. Examples of Third Party Services include social media platforms, eCommerce payment processors and other integration partners and service providers. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We do not control Third Party Services, and we are not liable for the actions of any Third Party Services or for any transaction you may enter into with them. Your security when using Third Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We are not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result (except where prohibited by applicable law).

Third Party Sites

The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We do not control and are not liable for any part of those sites or any actions of such third parties.

Third Party Content

The Services or websites created using the Services may contain certain third party content (“Third Party Content”). Third Party Content might include content: (1) that is offensive or objectionable; (2) that contains errors; (3) that violates intellectual property, trade secret, privacy, publicity or other rights or the good name of you or third parties; (4) that is harmful to your or others’ computers or networks; (5) that is unlawful or illegal; or (6) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. We do not represent or warrant that we endorse Third Party Content, or that we believe such content to be accurate, useful, lawful or non-harmful. We are not a publisher of, and we are not liable for, any Third Party Content uploaded, posted, published or otherwise made available via the Services by you or anyone else. You are responsible for taking precautions to protect yourself, and your computer or network, from Third Party Content accessed via the Services.

LOVINGLY’S INTELLECTUAL PROPERTY

The Services

Lovingly owns and hereby retains all proprietary rights in the Services. The Services are protected by copyright, trademark and other US and foreign laws. Except as explicitly provided herein, this Agreement does not grant you any right, title or interest in the Services, our trademarks, logos or other brand features or intellectual property or trade secrets or others’ content in the Services. You agree not to change, translate or otherwise create derivative works of the Services or others’ content.

Our Rights

“Lovingly”, the L “heart” logo, and the Lovingly logo are trademarks of Lovingly. You acknowledge that all information and content appearing on or through the Website or Services, including documents, copy, text, images, logos, design elements, graphics, as well as the arrangement and composition thereof, are the sole property of Lovingly or its third-party licensors. Lovingly reserves all rights in the Website and Services that are not expressly granted to you in this Agreement. You shall not reproduce, distribute, modify, retransmit, or publish any copyrighted, trademarked, patented or otherwise protected material without the express written consent of the applicable owner or licensor.

Limited License

We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Website and Services solely in accordance with this Agreement. Except as explicitly provided herein, you obtain no rights under this Agreement from us or our licensors to the Website or Services, including any related intellectual property rights.

Software

At any time, Lovingly may, in its sole discretion, provide to you certain software that may be either accessible, useable, or downloaded from, by, or through the Services. In the event you access or download software from the Services, the software, including any files or images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you by Lovingly or a third party software provider (a “Software Provider”). In the event that the Software is proprietary to Lovingly, under no circumstances shall title to the software be transferred to you by Lovingly. Lovingly retains full and complete title to the Software, and all intellectual property rights therein. Should Lovingly make available for access or download, a Software Provider’s software through the Services, your access or download and use of such software shall be subject to the terms of use set forth by the relevant Software Provider, and any applicable license agreement in connection with such Third Party Software. Lovingly does not grant you the right to redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form, unless such right is specifically granted herein.

Lovingly Can Use Your Feedback

To the extent that you give us feedback, comments, or suggestions concerning the Services (collectively, “Feedback”), you acknowledge and agree that all Feedback is Lovingly’s sole and exclusive property. You agree to irrevocably assign and transfer to us, and hereby do assign and transfer to us all of your right, title, and interest in and to the Feedback, including all intellectual property rights therein. To the extent that the foregoing assignment is ineffective for whatever reason, you agree to grant and hereby grant to Lovingly a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us in acquiring, perfecting and maintaining our intellectual property rights in and other legal protections for the Feedback.

Demo Content

We may provide templates or other products featuring demo content, including without limitation text, photos, images, graphics, audio and video (“Demo Content”), to provide you with ideas or inspiration. Unless we tell you otherwise, Demo Content (or any portion of it) may not remain on your Lovingly Store or be distributed, publicly displayed, publicly performed or otherwise published.

RESERVATION OF RIGHTS

We reserve the following rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by applicable law): (1) we may change parts or all of the Services and their functionality; (2) we may suspend or discontinue parts or all of the Services; (3) we may, subject to the termination provisions of these Terms, terminate, suspend, restrict or disable your access to or use of parts or all of the Services; and (4) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction). Any future release, update or other addition to the Services shall be subject to this Agreement. Lovingly reserves all rights not explicitly granted in this Agreement.

PRIVACY

Privacy Policy

Our Privacy Policy forms part of this Agreement. By using Lovingly Services, you agree to the terms specified in the Privacy Policy.

Data Processing Addendum

Our Data Processing Addendum https://www.lovingly.com/legal/dpa forms part of this Agreement. The Data Processing Addendum applies to citizens of countries within the European Union and other countries within the European Economic Area. By using the Services, you agree to the terms specified in the Data Processing Addendum.

Compliance with Privacy Laws

You agree that you are solely responsible, when using or accessing the Services, for complying with applicable data protection, security and privacy laws and regulations (including, where applicable, the EU General Data Protection Regulation and the EU e-Privacy Directive/Regulation, as defined in the Data Processing Addendum), including any notice and consent requirements. This paragraph is applicable, without limitation, to (1) the collection and processing by you of any personal data, (2) your use of the Services to send marketing and other electronic communications to individuals and (3) your use of cookies and similar technologies on your Lovingly Stores (including, in particular, those which we place for you at your request as part of the Services, such as to undertake analytics for you)

DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE

Reporting Claims of Copyright Infringement

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible the Services infringe your copyright, you may request removal of those materials (or removal access to them) from the Services by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
  1. Your physical or electronic signature.
  2. Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
  3. Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  4. Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  5. A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
  6. A statement that the information in the written notice is accurate.
  7. A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is: Attn: Copyright Agent Lovingly, LLC 1399 Route 52, Suite 100 Fishkill, NY 12524 (800) 533-1787 ext. 8860 copyright@lovingly.com If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

Counter Notification Procedures

If you believe that material you posted on the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter-Notice must include substantially the following:
  1. Your physical or electronic signature.
  2. An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
  3. Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  4. A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
  5. A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice. Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA. Repeat Infringers It is our policy in appropriate circumstances to disable or terminate the Retailer Accounts of users who repeatedly infringe copyright laws.

PAID SERVICES AND FEES

Relationship Between Agreements

We separately offer Lovingly Account Services and Lovingly Store Services. Lovingly Store Services include all of the Lovingly Account Services as well as services related to creating, operating, hosting and marketing an eCommerce websites for our Retailers. Lovingly Store Services are governed by a Lovingly Store Services Agreement (a “Store Agreement”). To the extent these Terms conflict with a Store Agreement, the Store Agreement will control.

Currency

Any and all payments for use of the Services and any Additional Purchases (as defined below) shall be made in U.S. Dollars.

Subscription Fee

By creating a Retailer Account and signing up for Lovingly Account Services, you hereby authorize Lovingly to charge your bank account or credit or debit card on a monthly basis for the subscription fee amount associated with your use of the Services (the “Subscription Fee”). The Subscription Fee is non-refundable, and you are responsible for all recurring charges made prior to termination of your Lovingly Account Services.

Credit Card Fee

In addition to the Subscription Fee, you hereby authorize Lovingly to charge a credit card processing fee (the “Credit Card Fee”) from the amount due to you for each Customer purchase made using the Services (each, a “Transaction”). The Credit Card Fee is equal to the sum of (a) thirty cents ($0.30) and (b) two and nine-tenths of a percent (2.9%) of the total amount of the Transaction. If a full or partial refund of a Transaction is provided by you to a Customer, a full or pro rata portion, as applicable, of the corresponding Transaction Fee shall be refunded.

Additional Purchases

You may also purchase additional goods and services via the Services, including but not limited to Lovingly SuperTicket paper (“Additional Purchases”). Payment for any Additional Purchases shall be made upon ordering them. You understand that such Additional Purchases are subject to the applicable terms of this Section. We may change our fees at any time. We will provide you with advance notice of these fee changes via the Services. New fees will not apply retroactively. If you do not agree with any fee changes, you have the right to reject the change by canceling the applicable Paid Service before your next payment date.

Our Payment Processor

You understand and acknowledge that any credit card, debit card, bank, or other payment information supplied by you, your Agent, or a Customer to pay for any Transaction will be transmitted directly to a third party payment processor of our choice (our “Payment Processor”). We do not collect or store payment information. Our current Payment Processor is Stripe, which processes your payments in accordance with its terms of service http://stripe.com/us/legal and privacy policy https://stripe.com/us/privacy , to which you agree to be bound. You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms. You agree to make payment using the payment method you provide with your Retailer Account. We reserve the right to correct, or to instruct our Payment Processor to correct, any errors or mistakes, even if payment has already been requested or received.

Taxes

Fees are stated exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes and all other charges incidental to purchasing any of the Services, except for those taxes based on Lovingly’s net income. If any payments for any part of the Services are subject to withholding tax by any government, you agree to reimburse us for such withholding tax. Where Lovingly does not have a legal obligation to pay or collect indirect Taxes on a sale of any of the Services to you, you may be required to self-assess those Taxes under the applicable laws of the country where you are established, have a permanent address or usually reside.

Payment Information

You agree to provide Lovingly with valid payment information in connection with your purchase of any Services. By providing Lovingly with your payment information, you agree that (i) Lovingly is authorized to immediately invoice your Retailer Account for all fees due and payable to Lovingly hereunder, (ii) Lovingly is authorized to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services), and (iii) no additional notice or consent is required for the foregoing authorizations. You agree to immediately notify Lovingly of any change in your payment information. Lovingly reserves the right at any time to change its prices and billing methods with prior notice. However, any pricing changes for your Services will not take effect until your next payment date. If payment cannot be charged to your credit card or your payment is returned for any reason, Lovingly reserves the right to either suspend or terminate your account and your access to all or part of the Services.

Automatic Renewal

In order to provide you with uninterrupted Service, we will automatically renew your subscription to certain paid Services. We will notify you in advance if you are using a paid Service that includes automatic renewal. Your renewal period will be equal to the term of your current subscription. For instance, if you have an annual subscription, your renewal period will be one (1) year. We will automatically charge you the applicable amount using the payment method you have on file with us. If you wish to stop automatic renewal or remove billing information from your Retailer Account, you may do so at any time by contacting us at help@lovingly.com. However, you must make such a request at least one (1) business day prior to your next payment date in order to cancel the renewal and avoid being charged for a subsequent renewal period.

Returns and Chargebacks

We do not grant refunds at this time, and you will not be eligible for any prorated refunds for amounts already paid. If you believe that your credit card has been charged in error please contact us at help@lovingly.com. You agree that once payment is made for your Subscription Fee, you and your Agents will not seek to cancel, Chargeback (as defined below), or otherwise seek a refund on any basis that is fraudulent, misleading, or untrue. If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Retailer Account and/or restrict your access to the Services. If you have questions about a payment made to us, we encourage you to contact our customer service department at help@lovingly.com before filing a Chargeback. We reserve our right to dispute any Chargeback. If you do not choose to use our Payment Processor as incorporated into the Services (“Lovingly Payments”) for Customer payments, you shall be responsible for all chargebacks and other payment disputes in accordance with any agreement you have with the applicable payment processor. Under no circumstances shall the Credit Card Fee be refunded to you or your Customer in the event of a chargeback or other dispute between you and that Customer. If you choose to use Lovingly Payments, all chargebacks initiated by your Customers shall be subject to a Fifteen Dollar ($15.00) fee (the “Chargeback Fee”), regardless of the reason for such chargeback, and the amount you received that is disputed by the Customer (the “Disputed Amount”) together with the Chargeback Fee shall be immediately withdrawn from your account. If a Customer initiates a chargeback, Lovingly will send a notification to your email address. If you dispute the chargeback, you will have the opportunity to submit evidence in your favor. Lovingly will then forward the dispute and any evidence to our Payment Processor, which shall determine whether the chargeback is valid. Our Payment Processor’s determination shall be final. If the dispute is decided in the Customer’s favor, Lovingly shall refund to the Customer the Disputed Amount plus the associated Credit Card Fee, and retain the Chargeback Fee. If the dispute is decided in your favor, you shall be refunded the Chargeback Fee and the Disputed Amount, and Lovingly shall retain the associated Credit Card Fee. Lovingly is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by you, your Agents, or your Customers that are deceptive, fraudulent or otherwise invalid (“Fraudulent Actions“). By using the Services, you hereby release Lovingly from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify Lovingly of any Fraudulent Actions which may affect the Services. Lovingly reserves the right, in its sole discretion, to terminate your account if you engage in, or permit any Agent or Customer to engage in, Fraudulent Actions.

CONDUCTING eCOMMERCE ON THE SERVICES

Retailer’s Responsibility to its Customers

The Services include features that enable Retailers to provide or sell products and services to, or otherwise collect payments from, their Customers (such activities, “Retailer eCommerce”). You agree, that Lovingly is not a party to, and Lovingly is not liable for, Retailer eCommerce. Retailer is solely responsible for Retailer eCommerce, and compliance with any laws or regulations related to it, including without limitation: (1) all taxes and fees associated with Retailer eCommerce; (2) fulfillment and delivery of Retailer’s products and services to Customers; (3) any warranties that Retailer makes regarding their products or services; (4) any claims made by Customers against Retailer; (5) handling any comments, complaints or other customer service related to Retailer eCommerce; and (6) compliance with any consumer, eCommerce and related laws.

eCommerce Restrictions

Retailer may not offer or sell any products or services which, in our sole discretion: (1) we consider hazardous, counterfeit, stolen, fraudulent, abusive or adverse to our interests or reputation; (2) are prohibited for sale, distribution or use; or (3) otherwise fail to comply with any applicable laws or regulations, including without limitation with respect to intellectual property, trade secrets, privacy or publicity rights, consumer protection, product safety or trade regulations or export controls, regulations or sanctions.

Terms of Sale

Retailer agrees to provide its products and services to Customers pursuant to the terms of sale indicated in our Customer Terms of Service https://www.lovingly.com/legal/customer-terms.

TERM AND TERMINATION

This Agreement will remain in effect until terminated by either you or us. You may terminate your subscription to the Services at any time. Such termination shall be effective upon the last day of the calendar month in which you have terminated your subscription. Under no circumstances shall you be entitled to any pro rata refund for a partial month of Services if either you terminate or Lovingly terminates your subscription prior to the end of a calendar month. You understand and agree that Lovingly may, in its sole discretion and at any time, terminate your password, your Retailer Account, or access to any Retailer Content, for any reason. Lovingly may also, in its sole discretion and at any time, discontinue any part of the Services or limit or restrict your access thereto, for any reason. In the event that Lovingly deems you to be in violation of this Agreement, you understand and agree that Lovingly may take any one or more of the foregoing actions without prior notice to you. If Lovingly has not deemed you to be in violation of this Agreement, Lovingly shall provide you with two (2) weeks prior written notice before taking such actions. Should Lovingly take any of these actions, it may, in its sole discretion, immediately deactivate or delete any information related your Retailer Account, including your registration information and Retailer Content. You understand and agree that Lovingly shall not have any liability to you or any other person for any termination of your access to any part of the Services or the removal of any information concerning your Retailer Account.

SURVIVAL

All sections of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, Your Content, Lovingly’s Intellectual Property, Digital Millennium Copyright Act Notice, Warranty Disclaimers, Limitation of Liability, Indemnification, Dispute Resolution and Additional Terms.

DISCLAIMER OF WARRANTY

LOVINGLY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT WE PROVIDE (“LOVINGLY CONTENT”), IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER LOVINGLY NOR ANY OF ITS EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE “LOVINGLY PARTIES“) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (1) THE SERVICES; (2) THE CONTENT; (3) RETAILER CONTENT; OR (4) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO LOVINGLY OR VIA THE SERVICE. IN ADDITION, THE LOVINGLY PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. THE LOVINGLY PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE LOVINGLY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) PRESENTED ON THE SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE LOVINGLY PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE LOVINGLY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THIS AGREEMENT. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE. THE LOVINGLY PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES WILL THE LOVINGLY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (1) THE SERVICE; (2) OUR CONTENT OR THAT OF THIRD PARTIES; (3) RETAILER CONTENT; (4) CUSTOMER CONTENT; (5) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (6) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE LOVINGLY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (7) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (8) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION; OR (9) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. SUCH LOSS OR DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE LOVINGLY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE LOVINGLY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE LOVINGLY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE TOTAL AMOUNT PAID BY YOU IN THE LAST CALENDAR YEAR TO LOVINGLY PURSUANT TO THIS AGREEMENT. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF LOVINGLY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE LOVINGLY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE LOVINGLY PARTIES. BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” LOVINGLY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

INDEMNIFICATION

You agree to defend (at Lovingly’ request), indemnify and hold harmless Lovingly, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your content or your access to or use of the Service; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Lovingly in the defense of any claim. Lovingly reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Lovingly.

ALTERNATIVE DISPUTE RESOLUTION

Applicability

This section applies only to our users who are: (1) US citizens, (2) non-US citizens who are not EU residents and (3) EU residents who bring any claim against Lovingly in the US.

Informal Resolution

You agree to attempt to resolve any claims directly with Lovingly prior to filing such claims or initiating a formal proceeding with any court, governmental agency or other third party. To work with Lovingly directly, please email legal@lovingly.com with a description of your claim. We will try to resolve the dispute directly via email, phone or other methods. If we cannot resolve the claim or dispute within thirty (30) days of our receipt of your first email, you or Lovingly may then bring a formal proceeding.

Arbitration Agreement

You agree that any controversy, claim or dispute arising out of or relating to this Agreement, or the breach thereof, will be resolved by final and binding arbitration under the rules of the American Arbitration Association in an arbitration proceeding conducted in White Plains, New York. Except as otherwise provided in this Agreement, both you and Lovingly waive any right to adjudicate any dispute in any other court or forum, except that a party may seek interim relief before the start of arbitration in a state or federal court sitting in White Plains, New York, to protect its confidential information. Both you and Lovingly shall abide by any decision in the arbitration and any court having jurisdiction may enforce it. Both you and Lovingly submit to the jurisdiction of the federal and state courts sitting in White Plains, New York to compel arbitration or to confirm an arbitration award. The prevailing party shall be entitled to reimbursement of attorney fees and costs. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. Lovingly’s performance under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement shall abridge Lovingly’s rights to comply with any governmental, court and law enforcement requests or requirements relating to your use of the Website or Services or information provided to or gathered by Lovingly with respect to such use.

No Class Actions

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED the Website OR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION,  AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND LOVINGLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

TIME LIMITATION ON CLAIMS

You agree that any claim you may have arising out of or related to your relationship with Lovingly must be filed within one (1) year after you first know, or reasonably should have known of the act, omission or default giving rise to the claim; otherwise, your claim is permanently barred. If applicable law prohibits a one (1) year limitation, any claim must be asserted within the shortest time period permitted by applicable law.

ADDITIONAL TERMS

Entire Agreement

This Agreement, which includes the Terms, the Privacy Policy and the Data Processing Addendum, constitutes the sole and entire agreement between you and Lovingly regarding the Services and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

Third Party Rights

This Agreement does not confer any third-party beneficiary rights.

Assignment

You will not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Lovingly. Any purported assignment or delegation by you without the appropriate prior written consent of Lovingly will be null and void. Lovingly may assign this Agreement or any rights hereunder without your consent. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement.

Waiver and Severability

No waiver by Lovingly of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Lovingly to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Modifications

We may modify this Agreement from time to time, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we will notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate the date on which the modifications become effective. Modifications will never apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement, including any  price changes. If you disagree with our changes, then you should stop using the Services and cancel all Paid Services.

Events Beyond Lovingly’s Control

We are not in breach of this Agreement or liable to you if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.

Governing Law; Venue

If there is any dispute arising out of the Website or Services, by using the Website and/or Services, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without giving effect to its conflict of laws principles and excluding that body of law known the United Nations Convention on Contracts for the Sale of Goods. You acknowledge and agree that any violation of this Agreement may cause Lovingly irreparable harm, and therefore agree that Lovingly will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Lovingly may have for a breach of this Agreement.

Translation

This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.