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PLEASE BE AWARE THAT SECTION 13 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Use of the Services and Molly Sims Properties. The Website, the Services, and the information and content available on the Website and the Services (as these terms are defined herein) (collectively, the “Molly Sims Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Molly Sims grants you a limited license to reproduce portions of Molly Sims Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Molly Sims in a separate license, your right to use any Molly Sims Properties is subject to the Terms.
Updates. You understand that Molly Sims Properties are evolving. As a result, Molly Sims may require you to accept updates to Molly Sims Properties that you have installed on your computer or mobile device. You acknowledge and agree that Molly Sims may update Molly Sims Properties with or without notifying you. You may need to update third-party software from time to time in order to use Molly Sims Properties.
Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, resell, upload, use, copy, rent, lease, lend, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Molly Sims Properties or any portion of Molly Sims Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Molly Sims Properties (including images, text, page layout or form) of Molly Sims, or use the Molly Sims Properties in any way that might confuse, misdirect, or misrepresent its source, or sponsorship or affiliation thereof or therewith; (c) you shall not use any metatags or other “hidden text” using Molly Sims’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Molly Sims Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to access, monitory, copy or use the Molly Sims Properties, interfere with product inventory or availability, or place or take preparatory steps to place orders for products, goods or services, or “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Molly Sims Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Molly Sims Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not take any action that imposes any unreasonable or disproportionately large load on the Molly Sims Properties; (i) you shall not take any action in connection with your use of the Molly Sims Properties which violates any applicable local, state, national or international law, rule, regulation or order of any court in conjunction with your use thereof; (j) you shall not otherwise use the Molly Sims Properties for any unlawful or abusive purposes, including, but not limited to, the violation of any intellectual property rights (whether belonging to Molly Sims or third parties) and the posting or distribution of any “harmful” or “malicious” code or programming devices (e.g., viruses, malware, ransomware, corrupted files, key locks, back doors, trap doors, timers or other disabling devices) or any other similar software or programs that may adversely affect the operation of the Services or any other software, hardware, network or other technology (collectively, “Malicious Code”); and (k) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Molly Sims Properties. Any future release, update or other addition to Molly Sims Properties shall be subject to the Terms. Molly Sims, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized
use of Molly Sims Properties terminates the licenses granted by Molly Sims pursuant to the Terms.
Third-Party Materials. As a part of Molly Sims Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Molly Sims to monitor such materials and that you access these materials at your own risk.
Registering Your Account. In order to access certain features of Molly Sims Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website (“Account”).
Registration Data. In registering an account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Molly Sims Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Molly Sims Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Molly Sims has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Molly Sims has the right to suspend or terminate your Account and refuse any and all current or future use of Molly Sims Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use Molly Sims Properties if you have been previously removed by Molly Sims, or if you have been previously banned from any of Molly Sims Properties.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Molly Sims Properties, including but not limited to, a mobile device that is suitable to connect with and use Molly Sims Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Molly Sims Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Molly Sims will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing care@Molly Sims.com.
Types of Content. You acknowledge that all files, materials, data, text, audio, video, images or other content, including Molly Sims Properties (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Molly Sims, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Molly Sims Properties (“Your Content”), and that you and other users of Molly Sims Properties, and not Molly Sims, are similarly responsible for all Content they Make Available through Molly Sims Properties (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Molly Sims has no obligation to pre-screen Content (including, but not limited to, User Content), although Molly Sims reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Molly Sims pre-screens, refuses or removes any Content, you acknowledge that Molly Sims will do so for Molly Sims’s benefit, not yours. Without limiting the foregoing, Molly Sims shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Molly Sims Properties. Except with respect to any Content you may post and any content a user may post, you agree that Molly Sims and its suppliers own all rights, title and interest in Molly Sims Properties (including but not limited to, any titles, computer code, themes, objects, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Molly Sims Properties.
Trademarks. Molly Sims and other related graphics, logos, service marks and trade names used on or in connection with Molly Sims Properties or in connection with the Services are the trademarks of Molly Sims and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Molly Sims Properties are the property of their respective owners.
Other Content. Except with respect to any Content that you may post, you agree that you have no right or title in or to any Content that appears on or in Molly Sims Properties.
License to Your Content. You grant Molly Sims a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, any content you may post (in whole or in part) for the purposes of operating and providing Molly Sims Properties to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of the Content you may post that you submit to any “public” area of Molly Sims Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in any content you may post, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Molly Sims, are responsible for all of the Content you may post on or in Molly Sims Properties.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Molly Sims through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Molly Sims has no obligations (including witho
ut limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Molly Sims a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Molly Sims Properties.
Third-Party Services. Molly Sims Properties may contain affiliate links and other links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Molly Sims Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Molly Sims. Molly Sims is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Molly Sims provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. For more information about how we use affiliate links, please review our Affiliate Compensation Disclosure, available at http://Molly Sims.com/affiliate-disclosure.
Products. Certain Products may be available exclusively online through the Website. These Products may have limited quantities. We have made every effort to display as accurately as possible the colors and images of our Products that appear on the Website. We cannot guarantee that your computer monitor’s display of any color will be accurate. We reserve the right, but are not obligated, to limit the sales of our Products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products that we offer. All descriptions of Products or Product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any Product at any time. Any offer for any Product made on this Website is void where prohibited.
Payment Information. By providing your payment and financial information, you agree that Molly Sims, its service providers (e.g., Shopify, Inc.), and any of their third party payment processors are authorized to immediately charge your account for all applicable fees and charges and that no additional notice or consent is required. Molly Sims reserves the right at any time to change its prices and billing methods. All information that you provide must be accurate, current and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S), PAYMENT MEANS OR OTHER FINANCIAL INFORMATION THAT YOU PROVIDE.
Orders. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
Cancellations. Molly Sims reserves the right at its discretion to cancel or reverse any payment, even if it has been previously confirmed by Molly Sims, as a result of any mistake or error, including any mistaken pricing, description error, or other error. Although it is unlikely that Molly Sims would refuse to accept an order, Molly Sims reserves the right to deny any order for any reason, including where the following situations arise: (i) insufficient information or errors in billing, payment, and/or shipping information; (ii) orders that cannot be processed due to erroneous information that you have provided, which includes, but is not limited to incorrect credit card or debit card number, expiration date, security value, or other incorrect information regarding payment types; (iii) suspected fraudulent information; or (iv) unavailability of a merchandise due to discontinuance or otherwise. If any Product is discontinued or otherwise becomes unavailable prior to delivery, Molly Sims reserves the right to cancel your order and provide you a refund for the amount paid for the Product. If this occurs, then Molly Sims will attempt to
contact you so that you are aware of the situation. In order to protect the intellectual property rights of Molly Sims and its licensors and suppliers, any suspected resale of Products for personal and/or business profit is strictly prohibited. Molly Sims will not accept any order that is deemed to possess characteristics of reselling. Molly Sims reserves the right to cancel any subsequent order from a customer who has been suspected of reselling.
Transfer of Risk and Title. Risk of loss of the Product passes to you on our delivery of the Product to the carrier, and you are responsible for any loss or damage to the Product from that point. You agree that claims against a carrier for damage during shipping are your responsibility.
Refund Policy. ALL SALES ARE FINAL. Molly Sims does not accept returns, exchanges or refunds. Please note Molly Sims, LLC reserves the right to refuse all returns.
Indemnification. You agree to indemnify and hold Molly Sims, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Molly Sims Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) any content you may post; (b) your use of, or inability to use, Molly Sims Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Molly Sims reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Molly Sims in asserting any available defenses. This provision does not require you to indemnify any of the Molly Sims Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Molly Sims Properties.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF Molly Sims PROPERTIES IS AT YOUR SOLE RISK, AND Molly Sims PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. Molly Sims PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
Molly Sims PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) Molly Sims PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF Molly Sims PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF Molly Sims PROPERTIES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT ACCESSED THROUGH Molly Sims PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS Molly Sims PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. Molly Sims MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Molly Sims OR THROUGH Molly Sims PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
No Liability for Content. THE SERVICE CONTAINS OPINIONS AND VIEWS OF Molly Sims AND ITS USERS. Molly Sims DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY CONTENT POSTED BY Molly Sims OR ANY OF ITS USERS THAT ARE MADE AVAILABLE THROUGH THE SERVICE.
No Liability for Conduct of Third Parties or Products. YOU ACKNOWLEDGE AND AGREE THAT Molly Sims PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Molly Sims PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES OR THE PRODUCTS THAT THEY PROVIDE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES AND/OR PRODUCTS RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF Molly Sims PROPERTIES. YOU UNDERSTAND THAT Molly Sims DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF Molly Sims PROPERTIES.
THE CONTENT AND INFORMATION LOCATED ON THE Molly Sims PROPERTIES ARE DESIGNED FOR EDUCATIONAL, INFORMATIONAL, AND ENTERTAINMENT PURPOSES ONLY AND IS NOT CONSTRUED TO BE ADVICE OF ANY KIND. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE Molly Sims PROPERTIES AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, INCLUDING MEDICAL ADVICE. YOU MUST NOT RELY ON ANY OF THE CONTENT AND INFORMATION FOR ANY PURPOSES WHATSOEVER, AND YOU MUST SEEK YOUR OWN INDEPENDENT PROFESSIONAL ADVICE BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES.
IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION OR CONTENT AVAILABLE ON THE Molly Sims PROPERTIES. THE USE OF INFORMATION AND CONTENT PROVIDED THROUGH THE Molly Sims PROPERTIES IS SOLELY AT YOUR OWN RISK.
NOTHING STATED OR POSTED ON THE Molly Sims PROPERTIES OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
THE Molly Sims PROPERTIES ARE CONTINUALLY UNDER DEVELOPMENT AND Molly Sims MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Molly Sims PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH Molly Sims PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT Molly Sims HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF Molly Sims PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE Molly Sims PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH Molly Sims PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF Molly Sims OR ANY THIRD PARTY ON Molly Sims PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO Molly Sims PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A Molly Sims PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A Molly Sims PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A Molly Sims PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. Molly Sims DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY Molly Sims’S NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL Molly Sims PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Molly Sims by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A Molly Sims PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A Molly Sims PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A Molly Sims PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Molly Sims AND YOU.
Remedies. If Molly Sims becomes aware of any possible violations by you of the Terms, Molly Sims reserves the right to investigate such violations. If, as a result of the investigation, Molly Sims believes that criminal activity has occurred, Molly Sims reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Molly Sims is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Molly Sims Properties, including any content you may post, in Molly Sims’s possession in connection with your use of Molly Sims Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that the content you may post violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Molly Sims, its users or the public, and all enforcement or other government officials, as Molly Sims in its sole discretion believes to be necessary or appropriate.
Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Molly Sims Properties, unless terminated earlier in accordance with the Terms.
Termination of Services by Molly Sims. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Molly Sims is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Molly Sims has the right to, immediately and without notice, suspend or terminate any Services provided to you. Molly Sims reserves the right to refuse service and/or prohibit or terminate access to the Molly Sims Properties, in whole or in part, for any or no reason, at any time in its sole discretion, with or without notice to you. Further, your breach of these Terms may jeopardize your continued use of the Molly Sims Properties and may result in the cancellation of your orders, among other consequences. You agree that all terminations for cause shall be made in Molly Sims’s sole discretion and that Molly Sims shall not be liable to you or any third party for any termination of your Account.
Termination of Services by You. If you want to terminate the Services provided by Molly Sims, you may do so by (a) notifying Molly Sims at any time, and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Molly Sims’s address set forth below.
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including the content you may post. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of any content you may post associated therewith from our live databases. Molly Sims will not have any liability whatsoever to you for any suspension or termination, including for deletion of the content you may post. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
International Users. Molly Sims Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Molly Sims intends to announce such Services or Content in your country. Molly Sims Properties are controlled and offered by Molly Sims from its facilities in the United States of America. Molly Sims makes no representations that Molly Sims Properties are appropriate or available for use in other locations. Those who access or use Molly Sims Properties from other countries do so at their own volition and are responsible for compliance with local law.
Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with
Molly Sims and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Molly Sims, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Molly Sims may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at Registered Agent, 21731 Ventura Boulevard, Suite 300, Woodland Hills, CA 91364 or e-mailing us at care@Molly Sims.com. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Molly Sims will pay them for you. In addition, Molly Sims will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Molly Sims. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND Molly Sims HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Molly Sims are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other claims shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Molly Sims, LLC, Registered Agent, 21731 Ventura Boulevard, Suite 300, Woodland Hills, CA 91364 or e-mailing us at care@Molly Sims.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Molly Sims username (if any), the email address you used to set up your Molly Sims account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided in subsection 13.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Molly Sims.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Molly Sims makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Molly Sims at the following email address care@Molly Sims.com.
Electronic Communications. The communications between you and Molly Sims use electronic means, whether you visit Molly Sims Properties or send Molly Sims e-mails, or whether Molly Sims posts notices on Molly Sims Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Molly Sims in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Molly Sims provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Release. You hereby release Molly Sims Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Molly Sims Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Molly Sims Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Molly Sims Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Molly Sims’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Molly Sims shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a Force Majeure event occurs that affects Molly Sims’s performance of its obligations under these Terms: (a) Molly Sims will contact you as soon as reasonably possible to notify you; and (b) Molly Sims’s obligations under these Terms will be suspended and the time for Molly Sims’s performance of its obligations will be extended for the duration of the Force Majeure event. You may cancel the Services affected by a Force Majeure event which has continued for more than 30 days. To cancel please contact Molly Sims.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Molly Sims Properties, please contact us at care@Molly Sims.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Molly Sims agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
Governing Law and Jurisdiction. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Each party irrevocably agrees that the courts of LOS ANGELES COUNTY, CALIFORNIA shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
Notice. Where Molly Sims requires that you provide an e-mail address, you are responsible for providing Molly Sims with your most current e-mail address. In the event that the last e-mail address you provided to Molly Sims is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Molly Sims’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Molly Sims at care@Molly Sims.com where email notice is allowed. Such notice shall be deemed given when received by Molly Sims by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer Molly Sims Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Molly Sims Properties, and any other applicable laws. In particular, but without limitation, Molly Sims Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Molly Sims Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Molly Sims Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Molly Sims are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Molly Sims products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complai
nt Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.