POST AND GOLD TERMS OF SERVICE
EFFECTIVE AS OF MARCH 5, 2020
PLEASE READ THESE TERMS OF SERVICE (THESE "TERMS") CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING "I AGREE" OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS.
1. GENERAL CONDITIONS
Modification of the Services or these Terms. MEMO reserves the right to modify these Terms or modify, suspend, or discontinue the Services at any time for any reason without notice. Please review these Terms from time to time for changes and updates. MEMO will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to MEMO upon registration.
Mobile Charges. To the extent you access the Services through a mobile or wireless device, your carrier's standard charges, data rates and other fees may apply.
Age Eligibility. Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site and the Services under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the home try-on or purchase of any Items, including all legal liability he or she may incur.
Your Account. In order to access certain features of the Services, including without limitation, features that enable you to home try-on and purchase Items, you must register and create a user account, including a user name and password of your choice ("Account"). You agree to keep your Account Information up to date and accurate at all times, including a valid email address. You further agree to bear and accept all responsibility for the confidentiality of your account information and credentials and all use or charges incurred from use of the Services with your Account. You agree to notify MEMO promptly of any actual or suspected unauthorized use of your Account or password.
2. THE SERVICES
Description. The Services allow registered users to access the Site or App and to browse, order products for home try-on and/or purchase jewelry items and accessories designed and manufactured by third parties ("Items") in accordance with these Terms.
Orders. You create an order for home try-on prior to purchasing Item(s) via the Services (an "Order") by providing your credit card information to MEMO to process a transaction for a specific fine jewelry or accessory product (each a "Item") offered for home try-on or sale by MEMO. All Orders are subject to acceptance in MEMO's sole discretion and availability. MEMO reserves the right to refuse service and Items to any user for any reason or no reason at any time.
Home Try-On and Home Try-On Period. Through the Services, you may order any Item for home try-on (subject to MEMO approval and availability) before you decide to purchase such Item. Each home try-on period will be 3 consecutive calendar days, which will begin on the date you take possession of such Item (“Home Try-On Period").
Eligibility Requirements for Home Try-On or to Purchase Items. The home try-on and purchase of Items via the Services are strictly limited to parties who: (a) can lawfully enter into and form contracts on the Internet in accordance with the laws of the State of New York, (b) have been issued a valid credit card and who are authorized to use by a bank acceptable to MEMO, and (c) have authorized MEMO to process a charge or charges on their credit card in the amount of the total Retail Value, plus fees and costs, for the Items which they home try-on or purchase. In order to submit an Order, you will be required to provide and maintain your personal details, including without limitation, your full, legal name, phone number, e-mail address, credit card information and other requested information by MEMO or its third-party suppliers ("Account Information"). You represent and warrant that your Personal Information will be at all times valid and correct and you confirm that you are the person referred to in the Account Information.
Purchase After Home Try-on Period. At any time prior to, or on the expiration of an applicable Home Try-On Period for an Item, you may purchase the Item by contacting MEMO at firstname.lastname@example.org or by selecting to purchase the item on your Account Order page. All sales of Items purchased following the Home Try-On Period are final and such Items may not be returned to MEMO, except in MEMO's discretion.
Security Hold. At the time of your Order for home try-on of an Item, MEMO may authorize your payment card for an amount up to the full amount of the original retail value of the Item ("Retail Value") plus applicable taxes at our sole discretion in order to cover loss or theft or damage beyond normal wear and tear ("Security Hold"). If you do not have sufficient credit available on your credit card account to allow the reserve for the Security Hold, we may, at our discretion, cancel the Order.
Promotion Codes. Promotion codes are non-transferable and there is no cash alternative. Furthermore, they cannot be used in conjunction with any other promotion code or offers, and must be redeemed by the date published, if provided.
Orders. All Orders are subject to acceptance and availability. Items in your shopping basket are not reserved and may be ordered for home try-on or purchased by other customers.
Shipping and Delivery. All shipping of Orders will be through MEMO's shipping partners and by MEMO's desired method, both of which may change from time to time at MEMO's discretion but which will in any event include shipping insurance for the Item. A signature confirming receipt is required for delivery of all Orders shipped from MEMO or its shipping partners. Your designated shipping address should be your office or home address or other address where you are assured that someone will be present to sign and receive delivery of the Items ("Secure Shipping Address"). You acknowledge that a Secure Shipping Address is highly recommended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which MEMO will not be liable. You will be liable for all such delays and additional delivery fees. MEMO does not bear liability for Items left unattended. Delivery time for Items you have ordered for home try-on or purchased may vary based upon (a) inventory availability, (b) your shipping address, (c) when you place an Order, and (d) other circumstances impacting delivery. Accordingly, MEMO makes no guarantees as to actual delivery time. We will send you an email letting you know when your Item(s) is shipped. Upon our shipping partner's delivery confirmation, you will bear full responsibility for all Items delivered to you. If you are unable to locate a confirmed delivery, you are required to contact MEMO immediately at email@example.com to place a tracer investigation with the shipping partner and to temporarily suspend the Home Try-On Period. All tracers are dependent on the shipping carriers' variable timeframes to complete and until the results of the investigation are received, we are not able to proceed with the resolution of a lost item. For Items ordered for home try-on, any refused or returned deliveries will be processed as a completed home try-on transaction, with any related fees assessed.
Use of Items. You agree to treat the Items ordered for home try-on with great care. Once you take possession of an Item, you are responsible for all loss, destruction or damage to the Item, regardless of cause. If you return an Item that has in any way been damaged, as determined by MEMO in our sole discretion, you agree that MEMO may charge your credit card for and you will pay a replacement fee, up to the Retail Value, and any applicable taxes for such an Item.
Return of the Items. Before or at the end of the applicable Home Try-On Period, if you decide not to purchase an Item, you must return the Item(s) to MEMO utilizing the original packaging and the pre-printed, pre-paid shipping label that came with your Order. You will ship the Item in accordance with these Terms and the instructions provided to you, including the date by which you must ship the Item. Please request a receipt from the shipping partner for proof that you delivered the Item to such shipping partner; without the receipt you will be held responsible if the Item is not delivered to MEMO. For security reasons, do not disclose the contents of the shipping package to the shipper.
Limits. Items ordered for home try-on or purchased by you are for personal or gift use and should not be re-sold, used for commercial purposes or any other commercial benefit. We reserve the right to: (a) limit, cancel or prohibit any home try-on or purchases of Items for any reason, including but not limited to fraud or availability concerns, (b) limit the number of Items that you may order for home try-on at any time, and (c) require the return of any or all Items ordered for home try-on in your possession in the event you fail to make required payments on time or in the event other factors arise which, in our sole discretion, increase the risk of non-timely payment by you.
Membership. MEMO’s Membership Program is a paid membership program that provides the following benefits, subject to the Terms and Conditions herein: A personal concierge to recommend pieces and assist with custom orders; advanced notifications, at your choosing, of new styles, collections or special pieces; complimentary home try-on + 15% savings on every item, every day; plus access to future benefits and services. From time to time, certain products or services may be excluded from the Membership benefit. Membership discounts may not be used toward shipping, duties or taxes and cannot be applied to prior purchases.
We reserve the right to exclude any individual(s) from the Membership Program or to terminate a Membership for any reason, incuding, without limitation, to misrepresentaion, fraud, abuse of the Services or Membership Program or other conduct deemed in our sole discretion to be detrimental to MEMO.
3. PRICES, BILLING, PAYMENT AND TAXES
Home Try-On Fee. The home try-on fee for each Item, if any, will be the price listed by MEMO to home try-on the Item for the home try-on Period, exclusive of taxes ("home try-on Fee"). MEMO will charge your credit card the amount of the home try-on Fee, if any, plus any and all applicable taxes immediately upon your Order.
Purchase Price. The purchase price for each Item will be the price listed by MEMO to purchase the Item, exclusive of taxes ("Purchase Price"). MEMO will charge you credit card the amount of the Purchase Price plus any and all applicable taxes immediately upon your Order to purchase an Item. Orders for the purchase of Items are final and cannot be cancelled.
Authorization. By placing an Order, you hereby authorize MEMO or its agent to bill your credit card for the applicable home try-on Fees or Purchase Prices, the Security Hold, if applicable, and any and all applicable taxes. We will charge your credit card immediately upon your submission of an Order. We reserve the right to determine whether your credit card(s) is/are pre-authorized to accept a minimum charge equal to each Item, whether for home try-on or purchase. In the event we deem the amount of available credit is not sufficient to cover these amounts, we may request the immediate return of all outstanding Items and/or that you provide a second valid credit card. For Items ordered for home try-on, typically an initial authorization for a nominal amount is processed; this is to verify the validity of the card. There will then be a second authorization for the actual amount of the home try-on Fee, if any, and if applicable, the Security Hold. Once an Order is placed, only the actual amount of the Order and any applicable taxes/fees will be charged, unless an Item ordered for home try-on is returned damaged or is not returned.
Ancillary Fees. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within 90 days after they first appear on your Account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies.
Pricing Policy and Taxes. Prices shown on the Site or via the Services are in US Dollars and are exclusive of taxes. Sales tax will be charged only on Orders shipped to New York State and any other states where we are required by law to charge taxes. No other tax or duty will be applied to Orders shipped within the USA. You shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site or via the Services.
Collections. If you do not pay the amounts you owe to MEMO when due, then MEMO will need to institute collection procedures. You agree to pay MEMO's costs of collection, including without limitation reasonable attorneys' fees.
Membership Fee. The fee for MEMO’s Membership Program (the "Membership Fee") is one hundred dollars (USD $100.00) per year plus any applicable taxes. The Membership Fee is non-refundable and at MEMO’s sole and absolute discretion, may be changed from year to year. Your Membership will renew automatically each year, unless cancelled before, on the annual anniversary date of your most recent membership.
To cancel your membership, you must notify us at firstname.lastname@example.org or by contacting your personal concierge by email or at 888-634-2549 prior to the annual anniversary of your membership. If canceled, your Membership will automatically expire at the end of your Membership term.
Unless canceled prior to the the annual anniversary of your membership, you expressly agree that your Membership will automatically renew for another year and you expressly authorize MEMO to collect and charge the then applicable Membership Fee as well as any applicable taxes using any credit card you have previously provided to MEMO.
4. ACTUAL DAMAGES, LIQUIDATED DAMAGES, ATTORNEY'S FEES AND COSTS
Actual Damages for Loss, Theft or Failure to Return an Item. Title to each Item shall remain in MEMO or the third party designer, as applicable, at all times except upon your purchase of the Item, or as specifically provided in this paragraph. In the case that any Item or original packaging is damaged, lost, stolen, or not returned to MEMO when due as described herein, you will also be FULLY responsible for MEMO's actual damages, including but not limited to the Retail Price of the Item and the price of replacement of the packaging. If an Item is returned other than within three (3) business days after the home try-on return date, you agree that we will have the right to charge your credit card(s), in our discretion, an amount up to 100% of the Retail Value of each such Item plus any accrued and unpaid home try-on Fees, shipping fees and taxes ("Damages Fees"). In such circumstances, you hereby authorize MEMO to charge your credit card(s) for the Damages Fees. If we exercise our right to require payment of the Damages Fees due to failure to timely return an Item(s), then we will refuse return of the Item(s) in question, and you will acquire title to such Item(s) from us.
Liquidated Damages. MEMO spends significant internal resources on its efforts to reduce and recover losses flowing from customer non-payments, from the theft and/or wrongful retention of its products, and from other improper, negligent or fraudulent acts. Because the amount of these internal losses are incapable or extremely difficult to accurately calculate, and because of factors including, without limitation, our recovery of anticipated profits, our loss of sales, and fluctuations in the value of gems and precious metals you agree that MEMO is also entitled to collect LIQUIDATED DAMAGES, IN ADDITION TO ITS ACTUAL DAMAGES, if MEMO commences collection or legal action to recover any amounts due from you, and/or to recover property wrongfully retained by you. In all cases, the LIQUIDATED DAMAGES will consist of a $500 per-Item charge for each Item that remains unpaid and/or unreturned at the time that MEMO commences collection or legal action, which sum is intended to compensate for the expenditure of MEMO's internal resources as a result of your breach of contract, fraud or other wrongful or negligent acts. You understand and agree that the LIQUIDATED DAMAGES of $500 per item is not a penalty, but instead is the reasonable and necessary estimate of the sums needed to compensate MEMO for the loss of its internal resources and for the loss of its future home try-on or purchase income.
Attorney's Fees. If debts are not able to be collected normally and are collected through the use of a collection agency, an attorney, or through other legal proceedings, you agree to pay all reasonable costs or fees, including attorney fees and court costs, incurred in connection with such collection effort.
Reservation of Right. MEMO expressly reserves its right to seek additional elements of actual damages other than those expressly identified above.
5. USE OF THE SERVICES
MEMO Content Provided "As Is." All content and information available through the Services, including but not limited to product descriptions, prices and specifications, product photos, advice from stylists or designers and photos and Submissions from other users, as described below ("MEMO Content") is available to you on an "as is" basis and is to be used for general information purposes only. MEMO Content is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. MEMO Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any MEMO Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the MEMO Content.
Updates. We may update or modify the MEMO Content, including Item descriptions, prices and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to email@example.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
Submissions. The Services may allow you and other third parties to post reviews or comments concerning the Service or the Items we distribute. Any opinions, advice, statements, services, offers, feedback or other information that constitutes part of the content expressed or made available by third parties on the Site or through the Services ("Submissions") are those of the respective authors or producers and not of MEMO, or its stockholders, directors, officers, or employees. MEMO may review and delete any Submissions, in whole or in part, that in the sole judgment of MEMO violate these Terms or which might be offensive, illegal, or that might violate the rights of or harm any third parties. Nonetheless, under no circumstances will MEMO, or its shareholders, directors, officers, or employees be held liable for any loss or damage caused by your reliance on information or Submissions obtained on the Site or via Services. It is your responsibility to evaluate the Submissions available through the Site or Services. By posting any Submission on the Site or through the Services or submitting information to us, you grant us a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to display, use, publically perform, reproduce, modify, distribute and create derivative works of the Submission or information submitted in any media, software, or technology of any kind now existing or developed in the future. By posting or providing a Submission or information, you represent and warrant that public posting and use of your Submission or information by MEMO will not infringe on or violate the rights of any third party.
Links to Third-Party Websites. The Services may contain links or references to non-MEMO websites, products, services or other materials or content ("Third Party Content"). This Third Party Content is provided to you as a convenience, and MEMO is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from MEMO, and MEMO has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that MEMO endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
Use of MEMO Content and Services. Subject to your compliance with these Terms, MEMO authorizes you to use the MEMO Content and Services, provided that: (a) you use the MEMO Content and Services solely for your personal, noncommercial, informational purposes; (b) you do not modify the MEMO Content or Services; and (c) you do not remove any copyright, trademark, and other proprietary notices on the MEMO Content or Services. Notwithstanding the foregoing, you may not download (other than through page caching necessary for personal use), modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, offer for sale, or use in any other way the MEMO Content or Services, or any information contained on, or obtained from, the Site without the express written consent of MEMO. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and the Services.
Restrictions on Use of the Services. You may not use the Services to: (i) transmit any content, information or other materials that are, or which MEMO considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a MEMO representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 18 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations. You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
Delays. There may be delays, omissions, or inaccuracies in the Services, including the MEMO Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons
6. INTELLECTUAL PROPERTY
Ownership of the Services. The Services, including the MEMO Content and all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of MEMO and its affiliates, partners and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "Post and Gold", "MEMO" and the MEMO logo are registered trademarks of Post and Gold, Inc., under the applicable laws of the United States and/or other countries. Other MEMO product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of MEMO and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. MEMO and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms. Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any MEMO Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of MEMO or such third party that may own such MEMO Content or Submission.
Subject to your compliance with these Terms, MEMO grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
Feedback. By sending us any feedback, ideas, suggestions, documents or proposals ("Feedback"), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that MEMO may use your Feedback without restriction or obligation to you or any third party.
7. LIMITED REPRESENTATIONS AND WARRANTIES FOR ITEMS
Correct or Unavailable Items. We will deliver the Items you selected in your Order, including the size, color and design specified in the applicable Item description on the Site, on or before the delivery date set forth in your Order, except in the rare event for Items ordered for home try-on, that an Item is unavailable. In such event, we will use reasonable efforts to notify you that the Item is unavailable for home try-on. If we are unable to reach you, you acknowledge and agree that we may cancel your Order and credit any home try-on Fee and shipment fee related to the Order, and in the event you receive an Item that does not conform with the Item description listed for such Item, you will follow the return instructions for the Item described herein or as we otherwise provide you. Notwithstanding the foregoing, Items may appear different in color and style than as displayed on the Site. These limited warranties apply only to you and may not be assigned, sold or transferred to any third party.
Limited Remedy. MEMO's liability to you for an Items failure to comply with any of the express, written warranties provided to you by MEMO regarding such Item is limited to, in MEMO's option, MEMO's use of commercially reasonable efforts, upon receipt of the non-conforming Item, to replace such, or provide a refund of any applicable home try-on Fee.
Use of Items at Your Own Risk. While we will provide you Items as described in the applicable Item descriptions, we do not expressly or otherwise guarantee or warrant the Items for any specific performance or purpose. You recognize and acknowledge that having valuable jewelry, including without limitation, the Items you order for home try-on or purchase, in your possession or use can be inherently dangerous and unpredictable. Use of an Item is at your own risk and MEMO shall not be held liable for any damages, complaints directly or indirectly related to any Item or Transaction. We are not responsible for any accidents or harm that may arise from your possession or use of the Items, and in addition to our other rights and remedies pursuant to these Terms, you hereby agree to indemnify us from any claims, charges or costs arising from your possession or use of Items or any related activities.
8. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION
Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN THE SECTION TITLED "LIMITED REPRESENTATIONS AND WARRANTIES FOR ITEMS", THE SERVICES AND ITEMS, ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, MEMO DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE MEMO CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE ITEMS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL MEMO BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE HOME TRY-ON, SALE OR DELIVERY OF ITEMS, EVEN IF MEMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS.
Indemnification. By using the Services, you agree to indemnify, hold harmless and defend MEMO and its subsidiaries, officers, directors, agents, affiliates and other partners and employees from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms and/or arising from a breach of these Terms.
Termination By You. You may deactivate your Account by using the features of the Services, and discontinue your use of the Services at any time. You understand that your Submissions may continue to exist and be used on or through the Service even after such deactivation.
Termination By MEMO. We, in our sole discretion, may terminate your password, Account, or use of the Service or the Site, and remove and discard any of your Submissions from the Site, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Also, we may, in our sole discretion and at any time, discontinue providing the Services or the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Services or the Site may be effected without prior notice, and you acknowledge and agree that we may immediately suspend, deactivate or delete your Account and all related information and Submissions made from your Account and bar any further access to such information or to the Services or Site. Further, you agree that we will not be liable to you or any third-party for any suspension or termination of the Services or your access to the Site.
Survival. The provisions of these Term which by their terms, require acts and obligations of any party after the expiration or termination of these Terms or the relationship of the parties hereto, shall survive the expiration or termination of these Terms.
Claims of Copyright Infringement. It is our policy to respect the intellectual property rights of others. We do not promote, foster or condone any infringing activity. If you believe your work has been copied in a way that constitutes copyright infringement, are aware of any infringing material on the Site, or know of someone who is making unauthorized use of the content of the Site, please contact our registered agent for notice of copyright infringement under the DMCA and notify us of your concern by submitting a written notice to us at the following address: MEMO, 160 Linden Oaks, Rochester, NY 14625.
Jurisdictional Issues. MEMO makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that MEMO intends to announce or make available such products or services to the general public, or in your country. Contact MEMO at firstname.lastname@example.org to determine which products and services may be available to you.
Export Laws. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the MEMO Content, or any part thereof, in any way, in violation of United States law.
Dispute Resolution. In the event a dispute arises between you and MEMO, please contact MEMO. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in Monroe County, New York, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the Western District of New York. Use of the Site or the App is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section. You and MEMO agree that any cause of action arising out of or related to these Terms or an Order must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
Governing Law. These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law.
Entire Agreement. These Terms are the entire agreement between you and MEMO relating to the subject matter herein and shall not be modified except by MEMO in accordance with these Terms, or as otherwise agreed in writing by you and MEMO. No employee, agent or other representative of MEMO has any authority to bind MEMO with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
Severability and Waiver. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The failure of a party to require performance of any provision will not affect such party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
Assignment. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. MEMO may assign these Terms at any time without notice to you.
Force Majeure. MEMO will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond MEMO's reasonable control.
Contact Information. Please send any questions or comments, or report violations of these Terms, to MEMO at email@example.com or MEMO, 160 Linden Oaks, Rochester, NY 14625.