MerchSource, LLC and its affiliates ("MerchSource," "we" or "us") provide online and mobile services related to its SmartScale products, including, but not limited to the SmartScale website (the "Site"), computer programs and mobile applications hosted by or on behalf of MerchSource (collectively, the "MS Services") intended to enhance a consumer's use of the SmartScale products offered by MerchSource (the "MS Products").
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND MERCHSOURCE AND GOVERNS YOUR USE OF THE MS SERVICES AND MS PRODUCTS. Subject to your acceptance of and adherence to these Terms of Use (the "Terms of Use"), MerchSource hereby grants you a limited, non-sublicensable and non-exclusive license to utilize the MS Services and MS Products as set forth herein. The terms "you" and "user" shall refer to all individuals and entities that access the MS Services.
By your affirmative actions of registering for and/or using the MS Products and/or MS Services, you signify your agreement to these Terms of Use and consent to allow MerchSource to communicate with you electronically regarding the MS Products and the MS Services.
We may make changes to the Terms of Use from time to time. A link to the most current Terms of Use will be available on the Site and we will indicate the date of the "Latest Update" at the top of the Terms of Use. We may also place a special notice on the MS Services or communicate significant changes by email. Your continued use of the MS Services following the posting of such changes constitutes your acceptance of the Amended Terms of Use.
The MS Services are available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review these Terms of Use with your parent or guardian to make sure that you and your parent or guardian understand it.
Full use of the MS Services requires compatible MS Products, Internet access, and certain software; may require periodic updates; and may be affected by the performance of these factors. The MS Services is not a guaranteed part of any third party product or service offering, and no purchase or obtaining of any third party product or service shall be construed to represent or guarantee you access to the MS Services.
Please see the section entitled "Precautions" below for recommended precautions related to your use of the MS Products and the MS Services.
You represent that you are using the MS Products and MS Services for its intended purpose. If you are registering or using the MS Products and MS Services on behalf of a company or other organization, you represent that you have authority to bind your employer by your actions.
If we determine that any user is not using the MS Services and MS Products responsibly, we have the right (but not the obligation) to suspend or terminate your access to and use of the MS Services, without prior notice if you engage in any conduct that we believe, in our sole discretion: (a) violates any provision of the Terms of Use; (b) is offensive to other users; (c) violates the rights of MerchSource or third parties; or (d) could cause MerchSource liability.
Content found on the Site or through the MS Services is for informational purposes only and is not intended to replace the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise or diet on a medical condition. You should always consult a physician before starting a fitness program, changing your diet or if you have any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through the MS Services or the Site. You should consult with your physician before following any training or diet instructions you receive through the MS Services or the Site or participating in any event announced on or through the MS Services or the Site. Not all exercises, diets or activities described on the MS Services, the Site or elsewhere are suitable for everyone. You should understand that when participating in any diet, exercise or exercise program, there is the possibility of physical injury and/or death. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. People who have Type 1 diabetes or other adverse medical or nutritional conditions should not use the MS Services or the Site unless such use is directed and closely monitored by a physician. By using the MS Services, MS Products and the Site, you represent that you have received consent from your physician to participate in the programs, diets, workouts, and exercises described on or related to the MS Services, MS Products or the Site.
We are not responsible for any health problems that may result from diets, training programs, products, or events you learn about through the MS Services, the Site or elsewhere. If you engage in any exercise program or diet you receive or learn about through the MS Services, the Site or elsewhere, you agree that you do so at your own risk and are voluntarily participating in these activities.
We try to provide helpful and accurate information on the MS Services and/or the Site, but we make no endorsement, representation or warranty of any kind about any information, services or recommendations made available through the MS Services or the Site. We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the MS Services, the Site or elsewhere. If you rely on any information provided by MerchSource, MerchSource employees, or others appearing on or contributing content to the MS Services or the Site, you do so solely at your own risk.
The MS Services and the Site do not enable you to share user generated information and data (“User Information and Data”) with others. All information related to your use of the MS Services, the Site and the MS Products will reside on your mobile device. The users of the MS Services, the Site and MS Products are the only persons that will control how information is stored and shared with others.
You are responsible for maintaining the confidentiality of any login information and any User Information and Data. You shall be responsible for all uses of your login information and User Information and Data, whether or not authorized by you. MerchSource cannot and does not assume any responsibility or liability for any User Information and Data or for any third party's fraudulent use or misuse of your User Information and Data.
Except for the User Information and Data, the MS Services and MS Products and all aspects thereof, including all copyrights, trademarks, and other intellectual property rights therein, are owned by MerchSource or its licensors. You acknowledge that the MS Services and MS Products and any underlying technology used in connection with the MS Services and MS Products contain MerchSource's intellectual property and proprietary information. You may not reproduce, distribute, modify or create derivative works of, publicly display (including by framing any content), or commercially exploit any part of the MS Services and MS Products except as necessary to view the content therein and to create a reasonable number of copies of portions of such content (without modification) for your personal, non-commercial use. All rights in the MS Services and MS Products not expressly granted to you by MerchSource are retained by MerchSource and its licensors.
If you violate any part of these Terms of Use, your permission to use the MS Services and MS Products automatically terminates and you must immediately destroy any copies you have made of any portion of the MS Services.
If you feel that any content posted on the MS Services or the Site infringes your copyrights or other intellectual property rights, please notify us by sending an email to __________________.
Upon request by us, you agree to defend, indemnify and hold MerchSource and its partners, affiliates, service providers, licensors, officers, directors, employees and agents harmless from and against any and all losses, liabilities, damages and costs, including but not limited to reasonable costs, legal and accounting fees, arising from any claims, actions or demands related to or alleged to relate to: (a) your violation of the Terms of Use; or (c) your violation of any intellectual property or third party rights or any applicable law in connection with your use of the MS Services and MS Products. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting and available defenses.
MerchSource may change or discontinue, temporarily or permanently, any feature or component of the MS Services at any time without further notice. You agree that MerchSource shall not be liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the MS Services.
The MS Services may provide links or references to websites operated by third parties. We do not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites. Inclusion of links to third party websites on our MS Services does not imply approval or endorsement of the linked website by us. If you decide to leave our MS Services and access these third party websites, you do so at your own risk. MerchSource suggests that you read the terms of use and privacy policies (if any) on those third party websites. You agree that MerchSource has no liability for any damage or loss of any type that is a result of your use of a third party website.
THE SITE, THE MS PRODUCTS AND/OR THE MS SERVICES ARE PROVIDED BY MERCHSOURCE AND ITS AFFILIATES "AS IS." NEITHER MERCHSOURCE NOR ITS PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE MS PRODUCTS, THE MS SERVICES AND/OR THE SITE, ITS CONTENTS, OR ANY INFORMATION MADE AVAILABLE BY OR THROUGH THE SITE OR THE MS SERVICES. IN ADDITION, MERCHSOURCE, ITS PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE MS PRODUCTS, THE MS SERVICES AND/OR THE SITE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHERMORE, MERCHSOURCE DOES NOT WARRANT THAT USE OF THE MS PRODUCTS, THE MS SERVICES AND THE SITE WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MS PRODUCTS, THE MS SERVICES, THE SITE IS FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS.
IN NO EVENT WILL MERCHSOURCE, ITS PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE MS PRODUCTS, THE MS SERVICES AND/OR THE SITE, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT MERCHSOURCE ITS PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF MERCHSOURCE, ITS PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES, ARISING FROM OR RELATING TO THE MS PRODUCTS, THE MS SERVICES AND THE SITE (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY) IS LIMITED TO $100. MERCHSOURCE'S PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES PROVIDERS AND PARTNERS HAVE NO LIABILITY WHATSOEVER ARISING FROM THE MS PRODUCTS, THE MS SERVICES AND THE SITE.
In some locations applicable law may not allow certain of the limitations described above, in which case such limitations may not apply to you.
You agree that any dispute between you and MerchSource arising out of or relating to these Terms of Use, the MS Products or the MS Services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
The Terms of Use and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
We want to address your concerns without needing a formal legal case. Before filing a claim against MerchSource, you agree to try to resolve the Dispute informally by contacting _________________. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or MerchSource may bring a formal proceeding.
You and MerchSource agree to resolve any Disputes through final and binding arbitration, except as set forth under Opt-out to Agreement to Arbitrate and Exceptions to Agreement to Arbitrate below.
You can decline or opt-out of this agreement to arbitrate by contacting ___________________ within 30 days of first accepting these Terms of Use and stating that you decline this arbitration agreement.
The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Orange County, California, or any other location we agree to.
The AAA rules will govern payment of all arbitration fees. MerchSource will pay all arbitration fees for claims less than $75,000. MerchSource will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Either you or MerchSource may assert claims, if they qualify, in small claims court in Orange County, California. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the MS Products or MS Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
You may only resolve Disputes with MerchSource on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under the Terms of Use.
In the event that the agreement to arbitrate in these Terms of Use is found not to apply to you or your claim or Dispute, you and MerchSource agree that any judicial proceeding will be brought in the federal or state courts of Orange County, California. Both you and MerchSource consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site, the MS Products or the MS Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
If any provision(s) of the Terms of Use is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. MerchSource's failure to exercise or enforce any right or provision of the Terms of Use will not constitute a waiver of such right or provision unless acknowledged and agreed to by MerchSource in writing. These Terms of Use constitute the entire agreement between you and MerchSource with respect to the subject matter herein and supersede any and all prior or contemporaneous oral or written agreements. You may not assign this agreement to any other party and any attempt to do so is void.