Introduction. These Retailer Terms of Service (these “Terms”) generally govern your business relationship with Lovingly and your use of the Services, as defined in Section 3 below. Terms that relate exclusively or primarily to specific products and services are located in the relevant product-specific agreement.
Binding Agreement; Incorporation.
These Terms form part of a binding contract between you and Lovingly, LLC (“we,” “us” or “Lovingly”), a Delaware limited liability company with a principal place of business located at 1399 Route 52, Suite 100, Fishkill, New York 12524.
If you use or access the Services in your capacity as a representative or employee of an organization, you agree to these Terms on that organization’s behalf and you represent and warrant that you have the right, authority and capacity do so. You also 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 these Terms. References to “you,” “your” or similar terms in these Terms refer to the individual or organization agreeing to these Terms. These Terms may also refer to you as “Retailer.”
Each of the Services is governed by a “Primary Service Agreement,” which details the specific terms and conditions related to that Service and which also incorporates these Terms by reference. Your Retailer Account provides the names and locations of the Primary Service Agreements associated with each of the Services.
IF YOU DO NOT ACCEPT THESE TERMS, WE DO NOT GRANT YOU ANY LICENSES OR RIGHTS HEREUNDER, AND YOU MUST NOT USE OR ACCESS THE SERVICES.
“Additional Purchases” has that meaning given to it in Section 13(d).
“Advertising Network” has that meaning given to it in Section 15(a).
“Advertising Network Services” has that meaning given to it in Section 15(a).
“Agent” means affiliate, employee, director, or other individual or entity authorized to act on a Party’s behalf.
“Chargeback” has that meaning given to it in Section 13(c).
“Chargeback Fee” has that meaning given to it in Section 13(c).
“Credit Card Fee” has that meaning given to it in Section 13(a).
“Data Processing Addendum” means the document located at https://www.lovingly.com/legal/dpa, which governs the manner in which we handle personal information originating in the European Union.
“Disputed Amount” has that meaning given to it in Section 13(c).
“Content” has that meaning given to it in Section 19.
“Customer” means any individual or entity that browses, inquires about or purchases your products or services either through their use or your use of the Services.
“Customer Data” has that meaning given to it in Section 5(e).
“Customer Terms of Service” means the document located at https://www.lovingly.com/legal/customer-terms, which governs our relationship with Customers who use the Services.
“Demo Content” has that meaning given to it in Section 6(g).
“DMCA” has that meaning given to it in Section 12.
“Documentation” means Lovingly's user manuals, handbooks, and installation guides, whether provided electronically or otherwise, and which relate to the Services.
“Feedback” has that meaning given to it in Section 6(f).
“Final Termination” means termination of your relationship with Lovingly and is indicated by the termination of your last remaining Primary Service Agreement.
“Google Analytics Data” has that meaning given to it in Section 5(c).
“Lovingly” has that meaning given to it in Section 2(a).
“Lovingly Parties” has that meaning given to it in Section 19.
“Lovingly Product Selection Guide” has that meaning given to it in Section 6(d).
“Payment Processor” has that meaning given to it in Section 13(f).
“Primary Service Agreement” has that meaning given to it in Section 2(d).
“Registration Information” has that meaning given to it in Section 4(a).
“Retailer” has that meaning given to it in Section 2(c).
“Retailer Account” has that meaning given to it in Section 4(a).
“Retailer Content” has that meaning given to it in Section 5(a).
“Retailer Commerce” has that meaning given to it in Section 14(a).
“Services” means any of the products and services offered by Lovingly under a product-specific agreement, including, but not limited to, our e-commerce website solution, our order and payment management system, point of sale services, wedding services, and marketplace services, along with any related products or services.
“Software” has that meaning given to it in Section 6(c).
“Software Provider” has that meaning given to it in Section 6(c).
“Taxes” has that meaning given to it in Section 13(g).
“Terms” has that meaning given to it in Section 1.
“Third Party Content” has that meaning given to it in Section 7(b).
“Third Party Images” has that meaning given to it in Section 6(d).
“Third Party Services” has that meaning given to it in Section 7(a).
“Transaction” has that meaning given to it in Section 13(a).
Accessing the Services.
Registration. To use or access the Services, you are required to register for a user account (“Retailer Account”). As part of your registration, we may ask you to provide information such as name, address or payment information (such information, “Registration Information”). You agree to provide us with accurate, complete and updated Registration Information.
Corporate Account Control. If you create a Retailer Account as a representative of or on behalf of an organization (e.g. by using a corporate email address), that organization will be entitled to control and modify that Retailer Account and to otherwise exercise its rights under these Terms. 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. If you are an individual, you hereby represent and warrant that you are at or beyond the age of majority within your jurisdiction and, in any event, older than eighteen (18) years of age. If you are under the age of majority in your jurisdiction, please discontinue your 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. You represent and warrant that you have the right, authority and capacity to agree to these Terms and to abide by all of the terms and conditions herein.
Geographical Limitations. Accessing or using the Services may be prohibited or restricted in certain countries or jurisdictions. Your right to use or access any of the Services is void in any jurisdiction where such use or access is prohibited. 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.
Usage Monitoring. In order to improve the Services for the benefit of you, your Agents and your Customers, you hereby agree that Lovingly may, but is not obligated to, monitor the use of the Services by you, your Agents and your Customers.
Retailer and Customer Content.
Retailer Content. You hereby acknowledge that you or your Agents 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 to 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, 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.
Analytics. We may collect Google Analytics data related to the performance of your products and services within the Services (the “Google Analytics Data”). Lovingly retains all rights and title to the Google Analytics Data, which is included within Lovingly IP. Upon your request, Lovingly may, in its sole discretion, provide you with limited access to certain Google Analytics Data. In order for Lovingly to provide you with such access, you will need to designate a valid Google account that you own and to which Lovingly can provide access. Upon a Final Termination, Lovingly will discontinue collection of the Google Analytics Data, which will be permanently deleted thirty (30) days after such Final Termination.
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.
Customer Data. You hereby acknowledge that Customers may send, receive, upload, retrieve or otherwise transmit or recover information, images, text, files, materials, content and other data (collectively, “Customer Data”) to or from the Services. Customer Data includes but is not limited to names, addresses, phone numbers, email addresses, and card messages. Retailer Content does not include any Customer Data.
Return of Content. Upon your termination of the Services, you may request that certain Retailer Content or Customer Data (excluding Customer payment information and purchase history) be exported from the Services for your use. Lovingly may, in its sole discretion, charge a fee for such exportation services.
Lovingly Intellectual Property.
Our IP. “Lovingly”, the “L” logo, and the Lovingly logo are registered trademarks of Lovingly Holdings, LLC. You acknowledge and agree that the Services, along with all information and content appearing on or through the Services, including documents, copy, text, images, logos, design elements, graphics, as well as the arrangement and composition thereof, excluding your Retailer Content, are the sole property of Lovingly or its third-party licensors (collectively, “Lovingly IP”). Lovingly IP is protected by copyright, trademark and other US and foreign laws. Lovingly reserves all right, title and interest in Lovingly IP that are not expressly granted to you within these Terms or a Primary Service Agreement. You shall not reproduce, distribute, modify, retransmit, or publish any Lovingly IP or any other copyrighted, trademarked, patented or otherwise protected material without the express written consent of the applicable owner or licensor. In addition, you shall not at any time purchase any search engine marketing or pay per click keywords (such as Google AdWords or Bing Ads), or domain names that use any Lovingly trademarks, domain names, and/or any variations and misspellings thereof.
Limited License. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Services and other Lovingly IP solely in accordance with these Terms. Such license is automatically revoked upon a Final Termination. Except as explicitly provided in these Terms or a Primary Service Agreement, neither we nor our licensors grant you any right, license, title or any related intellectual property rights in the Services or any other Lovingly IP.
Certain Services will require images of your product offerings for review by Customers. Unless you request otherwise, Lovingly will use its proprietary catalogue of product images (the “Lovingly Product Selection Guide”) for this purpose. Lovingly retains all rights in the Lovingly Product Selection Guide, and you shall not be granted any rights or licenses therein unless set forth in a separate agreement between you and Lovingly.
If you prefer to use the 1-800-Flowers, Teleflora, FTD, or other third party selection guide, or any other third party images to represent your products (collectively, “Third Party Images”), you must present Lovingly with a copy of a current and fully executed license agreement for such Third Party Images.
You hereby represent and warrant that you (i) are not and are not alleged to be in breach of an applicable license agreement for Third Party Images and (ii) are not using Third Party Images for which you do not have a valid Third Party Images license.
Logos. As part of the Services, you agree that Lovingly may create a logo for your business (the “Client Logo”) to be included within the Services. You acknowledge and agree that the Client Logo is Lovingly IP. Upon a Final Termination, you shall immediately cease all use of the Client Logo, including but not limited to: at your physical location or on any websites, social media accounts, or other web properties. You shall not register or attempt to register the Client Logo as a trademark in the United States or elsewhere. You and Lovingly may agree to use a preexisting logo to which you own all right, title and interest (a “Preexisting Logo”), and any Preexisting Logo will be considered Retailer Content. Lovingly has the right to make the final decision on whether or not to use a Preexisting Logo within the Services.
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 give you our consent, you shall not use the Demo Content (or any portion of it) within the Services or otherwise distribute, publicly display, publicly perform or publish the Demo Content.
Third Party Services, Sites and Content.
Third Party Services. The Services are integrated with various third party services, websites 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, e-commerce payment processors and other integration partners and service providers. These Third Party Services may have their own terms and policies, and your use of such Third Party Services 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 Content. The Services may contain certain third party content (“Third Party Content”), including content: (i) that is offensive or objectionable; (ii) that contains errors; (iii) that violates intellectual property, trade secret, privacy, publicity or other rights or the good name of you or third parties; (iv) that is harmful to your or others’ computers or networks; (v) that is unlawful or illegal; or (vi) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. We do not endorse Third Party Content, or represent or warrant that such content is 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.
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 these Terms. If we use your Retailer Content in the ways described herein, 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:
probe, scan or test the vulnerability of any system or network;
breach or otherwise bypass any security or authentication measures;
access, tamper with or use non-public areas or parts of the Services, or shared areas of the Services that Lovingly has not invited you to access;
take apart, decompile or reverse engineer any part of the Services in an effort to access things such as source code or algorithms;
access, search or create accounts for the Services by any means (for example, scraping, spidering or crawling) other than our publicly supported interfaces;
take action that imposes an unreasonable load on our infrastructure or that of our third party providers (where Lovingly reserves the right to determine what is reasonable or unreasonable); and
provide your password to any other person, use any other person’s username and password, or otherwise manage 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, and agree to use your best efforts to ensure that your Agents and Customers do not: (i) use the Services to act in a way that is false, fraudulent, inaccurate or deceiving; (ii) impersonate another person, company or entity; (iii) engage in misleading or unethical marketing or advertising; (iv) use unauthorized credit cards, debit cards or other unauthorized payment devices on the Services; (v) promote or advertise products or services other than your own without appropriate authorization; (vi) sell the Services unless specifically authorized to do so by Lovingly; (vii) infringe or misappropriate anyone’s copyright, trademark or other intellectual property rights or to violate anyone’s privacy or publicity rights; or (viii) violate any laws through your use of the Services, including, without limitation, all local laws regarding online conduct and acceptable content.
Harassment. You agree not to: (i) threaten, harass or abuse any individuals; (ii) incite violence; (iii) publish sexually explicit or obscene material; (iv) condone or promote self-harm; or (v) condone or promote violence against any person or group based on race, ethnicity, nationality, religion, gender, gender identity, sexual preference, age or disability;
Consequences of Prohibited Use. You shall use your best efforts to promptly notify Lovingly of any act or omission by you, your Agents or your Customers that has resulted in or may likely result in the violation of this Section 8. If we conclude, at our sole discretion, that you have misused the Services, we may take corrective action. We do our best to ensure fair outcomes, but in all cases, we reserve the right to remove any content or suspend or terminate your use of or access to 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 firstname.lastname@example.org.
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.
Reservation of Rights. We reserve the following rights without limitation, 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): (a) we may change parts or all of the Services and their functionality; (b) we may suspend or discontinue parts or all of the Services; (c) 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; (d) we may delete or remove any Retailer Content and (e) 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). Lovingly reserves all rights not explicitly granted in a Primary Service Agreement.
Digital Millennium Copyright Act Notice. 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 within the Services infringe on 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:
Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
Attn: Copyright Agent
1399 Route 52, Suite 100
Fishkill, NY 12524
(800) 533-1787 ext. 8860
Failure of Notice Requirements. 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.
Misrepresentation. 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.
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. Lovingly charges a credit card fee for certain Services (the “Credit Card Fee”). If your Primary Service Agreement has authorized Lovingly to charge the Credit Card Fee for a particular Service, then the Credit Card Fee will be charged according to the following terms:
Credit Card Fee. You hereby authorize Lovingly to charge the Credit Card Fee from the amount due to you for each Customer purchase made with a credit card through 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 one 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 pro rata portion of the corresponding Credit Card Fee shall be refunded.
Refunds. We do not grant refunds at this time, and you will not be eligible for any prorated refunds for amounts already paid unless otherwise indicated in a Primary Service Agreement. If you believe that your credit card or account has been charged in error, please contact us at email@example.com.
You agree that once you have made any payment to Lovingly pursuant to a Primary Service Agreement, 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 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 firstname.lastname@example.org before filing a Chargeback. We reserve our right to dispute any Chargeback.
All chargebacks initiated by you or your Customers shall be subject to a Fifteen Dollar ($15.00) fee (the “Chargeback Fee”), regardless of the reason for such chargeback. The amount in dispute (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 the email address provided in your Registration Information. 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 the 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.
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.
Fee Changes. 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.
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 specified in the Primary Service Agreement that governs the relevant Service. 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 email@example.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.
Currency. Unless otherwise stated, all monetary amounts specified in these Terms or a Primary Service Agreement are in reference to lawful currency of the United States of America.
Selling Products on the Services.
Retailer’s Responsibility to its Customers. The Services include features that enable Retailer to provide or sell products and services to, or otherwise collect payments from, its Customers (such activities, “Retailer Commerce”). You agree, that Lovingly is not a party to, and Lovingly is not liable for, Retailer Commerce. Retailer is solely responsible for Retailer Commerce, and compliance with any laws or regulations related to it, including without limitation: (1) all taxes and fees associated with Retailer Commerce; (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 Commerce; and (6) compliance with any e-Commerce, general consumer, sales and marketing or other laws pertaining to general commerce.
Unprocessed Orders. Lovingly shall have no liability to you, any Customer, or any other person for lost, unprocessed, or mishandled orders. If, due to a malfunction or other circumstances, we cannot communicate a Customer’s order to you via the Services, we may, in our sole discretion, use your Registration Information to communicate such order to you.
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.
Online Advertising Management.
Upon your request, and provided that you have completed a credit card authorization form, Lovingly shall create and take exclusive administrative responsibility for managing a Google Ads, Bing Ads, or another pay-per-click advertising service (an “Advertising Network”) for your Lovingly Store. Such management includes but is not limited to bid prices, keyword selection, and routine evaluation of campaign performance and corresponding adjustments (the “Advertising Network Services”).
All aspects of the Advertising Network Services will be determined solely by Lovingly, except that you will determine the budget to be spent on Advertising Network Services. Lovingly shall close the Advertising Network subaccount associated with your Retailer Account upon the earlier of (a) thirty (30) days after your written notice of your termination of the Advertising Network Services, and (b) termination of this Store Services Agreement.
You shall be solely responsible for direct payment of all Advertising Network charges. You agree to ensure that all credit card and payment information you furnish to Lovingly is accurate and up to date at all times and that you are fully authorized to use such credit card and payment information for purposes of paying for Advertising Network fees. If you wish to change your Advertising Network payment method, you must notify Lovingly in writing at least thirty (30) days in advance. You understand that once payment is made for your Advertising Network fees, you and your agents will not seek to cancel, charge back, or otherwise seek a refund on any basis that is fraudulent, misleading, or untrue. All chargebacks initiated by you or your agent may result in the cancellation of the Advertising Network services.
By requesting the Advertising Network Services, you agree to the Google Ads terms and conditions (located at: https://support.google.com/adspolicy/answer/54818?hl=en) and/or the Bing Ads Terms and Conditions (located at: https://advertise.bingads.microsoft.com/en-us/resources/policies), as applicable.
Documentation. Subject to these Terms, Lovingly hereby grants Retailer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable (except in accordance with Section 24(b)) license to use and make a reasonable number of copies of the Documentation solely for Retailer's internal business purposes in connection with Retailer's use of the Services. This license is revoked (i) automatically upon a Final Termination or (ii) as determined pursuant to Section 17(b).
Support. Lovingly shall make the Documentation accessible through your Retailer Account. In addition, you may contact our customer support team at firstname.lastname@example.org.
In addition to the general termination provisions contained in this Section, each Primary Service Agreement contains termination provisions specifically concerning the Services to which such agreement applies.
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 these Terms or a Primary Service 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 these Terms or a Primary Service Agreement, Lovingly shall provide you with two (2) weeks prior written notice before taking such actions.
Should Lovingly take any of the actions described in Section 17(b), 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 contained within these Terms that, by their nature, should survive termination shall survive termination, including, without limitation, Sections 5, 6, 12, 19, 20, 21, 22, 23 and 24.
DISCLAIMER OF WARRANTY.
LOVINGLY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT PUBLISHED WITHIN THE SERVICES (THE “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: (a) THE SERVICES; (b) THE CONTENT; OR (c) 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 SERVICES, OR ANY COMPONENT THEREOF, WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.
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: (a) THE SERVICES; (b) OUR CONTENT OR THAT OF THIRD PARTIES; (c) RETAILER CONTENT; (d) CUSTOMER CONTENT; (e) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (f) 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; (g) ANY ACTION TAKEN BY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS TO ENFORCE THEIR INTELLECTUAL PROPERTY RIGHTS; (h) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; (i) ANY CHARGEBACKS BY YOU OR YOUR CUSTOMERS; OR (j) 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).
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 THE AGREEMENT GOVERNING THAT PART OF THE SERVICES FROM WHICH SUCH LIABILITY ARISES.
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. SECTION 1542 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 (whether by your acts or omissions or those of your Agents or Customers): (a) access to or use of the Services; (b) breach or alleged breach of these Terms or any Primary Service Agreement or any agreement between you and a third party; (c) your violation of any third-party right, including without limitation, any rights concerning intellectual property, publicity, confidentiality, property or privacy; (d) 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; (e) any dispute between you and any Customer or Agent; or (f) any misrepresentation made by you. You will cooperate as fully as requested 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 email@example.com with a description of your claim. We will try to resolve the dispute directly via email, phone or other methods. If we cannot resolve the claim or dispute within thirty (30) days of our receipt of your first email, you or Lovingly may then bring a formal proceeding.
Arbitration Agreement. You agree that any controversy, claim or dispute arising out of or relating to these Terms, any Primary Service 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 these Terms, 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 any Primary Service Agreement is subject to existing laws and legal process, and nothing contained in these Terms or any Primary Service 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.
Third Party Rights. These Terms do not convey any third party beneficiary rights to any individual or entity that is not a party hereto.
Assignment. You shall not assign a Primary Service 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 any Primary Service Agreement or any rights hereunder without your consent. Neither the course of conduct between the parties nor trade practice will act to modify these Terms or any Primary Services Agreement.
Waiver and Severability. No waiver by Lovingly of any term or condition set out in these Terms or in any Primary Service 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 these Terms or any Primary Service 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, the application of such provision to other persons or circumstances along with the remaining provisions of these Terms will not be affected thereby and will be enforced to the greatest extent permitted by law.
Modifications. We may modify these Terms or our Primary Service Agreements from time to time, and will always post the most current versions 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 these Terms or any Primary Service Agreement, nor are we 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 act, circumstance, event or matter 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 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 these Terms or any Primary Service 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 these Terms or any Primary Service Agreement.
Translation. These Terms were originally written in English. We may translate these Terms 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.
No Partnership. In no event shall a Primary Service Agreement create a partnership, joint venture, broker, employee-employer, agency, or franchisor-franchisee relationship between you and Lovingly.