Effective Date: November 1, 2018
Last Updated Date: November 1, 2018
PLEASE READ THIS BINDING LEGAL AGREEMENT CAREFULLY. Nécessaire (“Nécessaire”, “Company” “we”, or “us”) provides a website and online shopping platform that allows users to buy various items. The Nécessaire website is located at https://www.Nécessaire.com (collectively, the “Website,” and the Website, together with any products and services provided by Nécessaire, the “Service”).
IF YOU SUBSCRIBE TO CERTAIN OF OUR SERVICES FOR A SPECIFIC TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM, AT COMPANY’S THEN-CURRENT FEE FOR SUCH SUBSCRIPTION SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 6 BELOW.
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.
1. Use of the Services and Nécessaire 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 “Nécessaire Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Nécessaire grants you a limited license to reproduce portions of Nécessaire Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Nécessaire in a separate license, your right to use any Nécessaire Properties is subject to the Terms.
1.1 Updates. You understand that Nécessaire Properties are evolving. As a result, Nécessaire may require you to accept updates to Nécessaire Properties that you have installed on your computer or mobile device. You acknowledge and agree that Nécessaire may update Nécessaire Properties with or without notifying you. You may need to update third-party software from time to time in order to use Nécessaire Properties.
1.2 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 Nécessaire Properties or any portion of Nécessaire Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Nécessaire Properties (including images, text, page layout or form) of Nécessaire, or use the Nécessaire 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 Nécessaire’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 Nécessaire 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 Nécessaire 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 Nécessaire Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Nécessaire 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 Nécessaire Properties; (i)_you shall not take any action in connection with your use of the Nécessaire 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 Nécessaire Properties for any unlawful or abusive purposes, including, but not limited to, the violation of any intellectual property rights (whether belonging to Nécessaire 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 Nécessaire Properties. Any future release, update or other addition to Nécessaire Properties shall be subject to the Terms. Nécessaire, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Nécessaire Properties terminates the licenses granted by Nécessaire pursuant to the Terms.
1.3 Third-Party Materials. As a part of Nécessaire Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Nécessaire to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account. In order to access certain features of Nécessaire 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”).
2.2 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 Nécessaire 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 Nécessaire Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Nécessaire has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Nécessaire has the right to suspend or terminate your Account and refuse any and all current or future use of Nécessaire 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 Nécessaire Properties if you have been previously removed by Nécessaire, or if you have been previously banned from any of Nécessaire Properties.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Nécessaire.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Nécessaire Properties, including but not limited to, a mobile device that is suitable to connect with and use Nécessaire 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 Nécessaire 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. Nécessaire 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 email@example.com.
3.1 Nécessaire Properties. Except with respect to any content you may post and any content a User may post, you agree that Nécessaire and its suppliers own all rights, title and interest in Nécessaire Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Nécessaire game client, and Nécessaire game clients 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 Nécessaire Properties.
3.2 Trademarks. and other related graphics, logos, service marks and trade names used on or in connection with Nécessaire Properties or in connection with the Services are the trademarks of Nécessaire 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 Nécessaire Properties are the property of their respective owners.
3.3 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 Nécessaire Properties.
3.4 License to Your Content. Subject to any applicable account settings that you select, you grant Nécessaire 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 Nécessaire 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 Nécessaire 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 Nécessaire, are responsible for all of the content you may post on or in Nécessaire Properties.
3.5 Username. Notwithstanding anything contained herein to the contrary, by submitting any of your content to any forums, comments or any other area on Nécessaire Properties, you hereby expressly permit Nécessaire to identify you by your username (which may be a pseudonym), if applicable, as the contributor of your content in any publication in any form, media or technology now known or later developed in connection with your content.
3.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Nécessaire through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Nécessaire has no obligations (including without 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 Nécessaire 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 Nécessaire Properties.
4. Investigations. Nécessaire may, but is not obligated to, monitor or review Nécessaire Properties and Content at any time. Without limiting the foregoing, Nécessaire shall have the right, in its sole discretion, to remove any of the content you may post for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Nécessaire does not generally monitor user activity occurring in connection with Nécessaire Properties or Content, if Nécessaire becomes aware of any possible violations by you of any provision of the Terms, Nécessaire reserves the right to investigate such violations, and Nécessaire may, at its sole discretion, immediately terminate your license to use Nécessaire Properties, or change, alter or remove any content you may post, in whole or in part, without prior notice to you.
5. Third-Party Services. Nécessaire Properties may contain 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 Nécessaire 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 Nécessaire. Nécessaire is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Nécessaire 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.
6. Fees and Purchase Terms.
6.1 General Purpose of Terms. The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose.
6.2 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide a valid credit card (Visa, MasterCard, or any other issuer accepted by us) to Shopify, our third party payment provider (“Payment Provider”) in order to purchase products and to use certain Services. Your credit card provider agreement governs your use of the designated credit card, and the terms and conditions on the website of the Payment Provider governs your use of its website, and you must refer to the respective agreement or terms and conditions, and not the Terms, to determine your rights and liabilities. By providing to Shopify, on behalf of Nécessaire, with your credit card number and associated payment information, you agree that Nécessaire is authorized to immediately invoice your Account for all fees and charges due and payable to Nécessaire hereunder and that no additional notice or consent is required. You agree to immediately notify Nécessaire of any change in your billing address or the credit card used for payment hereunder. Nécessaire reserves the right at any time to change its prices and billing methods, either immediately upon posting on Nécessaire Properties or by e-mail delivery to you.
6.3 Automatic Renewal. We may offer subscriptions to certain of our Services. If you have elected to purchase a subscription to the Services, your subscription will remain in effect until it is cancelled. After the Initial Term of your subscription, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Company’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Nécessaire that your subscription will be automatically renewed, you will have thirty (30) days from the date of Nécessaire’s notice), by logging into your Account and accessing your settings. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. By subscribing, you authorize Nécessaire and/or Shopify to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Shopify does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Nécessaire and/or Shopify may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received). You will have thirty (30) days from the Services Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Services, in which case Company will refund your Services subscription fee, if already paid for the applicable Services.
6.4 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.
6.5 Products or Services. Certain products or services may be available exclusively online through the Website. These products or services may have limited quantities and are subject to our return, exchange, and refund policies available at https://necessaire.com/pages/faq. 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 or services 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 or services 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 or service made on this Website is void where prohibited.
6.6 Taxes. Nécessaire’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Nécessaire, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Nécessaire for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Nécessaire is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.7 Withholding Taxes. You agree to make all payments of fees to Nécessaire free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Nécessaire will be your sole responsibility, and you will provide Nécessaire with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
6.8 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: firstname.lastname@example.org.
6.10 Shipping. Nécessaire will use commercially reasonable efforts to meet any shipment schedules set forth on the Services. However, any shipment date or forecast provided by Nécessaire is only an estimate of the time required to make shipment. Unless otherwise agreed to by Nécessaire, all items will be shipped by Nécessaire, or its designated representative, in the Nécessaire’s standard packaging using a delivery service specified by Nécessaire.
7. Indemnification. You agree to indemnify and hold Nécessaire, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Nécessaire 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, Nécessaire 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. Nécessaire 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 Nécessaire in asserting any available defenses. This provision does not require you to indemnify any of the Nécessaire 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 Nécessaire Properties.
8. Disclaimer of Warranties and Conditions.
8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF NÉCESSAIRE PROPERTIES IS AT YOUR SOLE RISK, AND NÉCESSAIRE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NÉCESSAIRE 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. This Section 8 does not affect in any way our return policy or limited warranty for goods purchased on the Website.
(a) NÉCESSAIRE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) NÉCESSAIRE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF NÉCESSAIRE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF NÉCESSAIRE PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT ACCESSED THROUGH NÉCESSAIRE 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 NÉCESSAIRE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NÉCESSAIRE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NÉCESSAIRE OR THROUGH NÉCESSAIRE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NÉCESSAIRE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NÉCESSAIRE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF NÉCESSAIRE PROPERTIES. YOU UNDERSTAND THAT NÉCESSAIRE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF NÉCESSAIRE PROPERTIES.
9. Limitation of Liability.
9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NÉCESSAIRE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH NÉCESSAIRE PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NÉCESSAIRE 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 NÉCESSAIRE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE NÉCESSAIRE 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 NÉCESSAIRE PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON NÉCESSAIRE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO NÉCESSAIRE 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 NÉCESSAIRE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NÉCESSAIRE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NÉCESSAIRE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. NÉCESSAIRE DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY NÉCESSAIRE’S NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL NÉCESSAIRE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Nécessaire 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 NÉCESSAIRE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NÉCESSAIRE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NÉCESSAIRE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NÉCESSAIRE AND YOU.
10. Remedies. If Nécessaire becomes aware of any possible violations by you of the Terms, Nécessaire reserves the right to investigate such violations. If, as a result of the investigation, Nécessaire believes that criminal activity has occurred, Nécessaire reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Nécessaire is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Nécessaire Properties, including any content you may post, in Nécessaire’s possession in connection with your use of Nécessaire 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 Nécessaire, its Users or the public, and all enforcement or other government officials, as Nécessaire in its sole discretion believes to be necessary or appropriate.
11. Term and Termination.
11.1 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 Nécessaire Properties, unless terminated earlier in accordance with the Terms.
11.2 Termination of Services by Nécessaire. 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 Nécessaire is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Nécessaire has the right to, immediately and without notice, suspend or terminate any Services provided to you. Nécessaire reserves the right to refuse service and/or prohibit or terminate access to the Nécessaire 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 Nécessaire Properties and may result in the cancellation of your orders, among other consequences. You agree that all terminations for cause shall be made in Nécessaire’s sole discretion and that Nécessaire shall not be liable to you or any third party for any termination of your Account.
11.3 Termination of Services by You. If you want to terminate the Services provided by Nécessaire, you may do so by (a) notifying Nécessaire at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Nécessaire's address set forth below.
11.4 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. Nécessaire 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.
12. International Users. Nécessaire 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 Nécessaire intends to announce such Services or Content in your country. Nécessaire Properties are controlled and offered by Nécessaire from its facilities in the United States of America. Nécessaire makes no representations that Nécessaire Properties are appropriate or available for use in other locations. Those who access or use Nécessaire Properties from other countries do so at their own volition and are responsible for compliance with local law.
13. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Nécessaire and limits the manner in which you can seek relief from us.
13.1 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 Nécessaire, 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 Nécessaire 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.
13.2 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 Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808 or e-mailing us at email@example.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, Nécessaire will pay them for you. In addition, Nécessaire 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.
13.3 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 Nécessaire. 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.
13.4 Waiver of Jury Trial. YOU AND NÉCESSAIRE 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 Nécessaire 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.
13.5 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.
13.6 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: Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808 or e-mailing us at firstname.lastname@example.org within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Nécessaire username (if any), the email address you used to set up your Nécessaire 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.
13.7 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 Nécessaire.
13.8 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Nécessaire 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 Nécessaire at the following email address: email@example.com.
14. General Provisions.
14.1 Electronic Communications. The communications between you and Nécessaire use electronic means, whether you visit Nécessaire Properties or send Nécessaire e-mails, or whether Nécessaire posts notices on Nécessaire Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Nécessaire in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nécessaire 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.
14.2 Release. You hereby release Nécessaire 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 Nécessaire 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 Nécessaire 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 Nécessaire 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.
14.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nécessaire’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.4 Force Majeure. Nécessaire 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 Nécessaire’s performance of its obligations under these Terms: (a) Nécessaire will contact you as soon as reasonably possible to notify you; and (b) Nécessaire’s obligations under these Terms will be suspended and the time for Nécessaire’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 Nécessaire.
14.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Nécessaire Properties, please contact us at firstname.lastname@example.org. 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.
14.6 . Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Nécessaire 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.
14.7 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 England and Wales 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).
14.8 Notice. Where Nécessaire requires that you provide an e-mail address, you are responsible for providing Nécessaire with your most current e-mail address. In the event that the last e-mail address you provided to Nécessaire is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Nécessaire’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nécessaire at email@example.com where email notice is allowed. Such notice shall be deemed given when received by Nécessaire by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.9 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.
14.10 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.
14.11 Export Control. You may not use, export, import, or transfer Nécessaire Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Nécessaire Properties, and any other applicable laws. In particular, but without limitation, Nécessaire 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 Nécessaire 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 Nécessaire 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 Nécessaire 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 Nécessaire products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint 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.
14.13 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.