(Last updated 2/7/2018)
The Site, Services, and App are provided by Stamp Memories, LLC, a Tennessee limited liability company with a principal place of business located at 2817 West End Avenue, Suite 126 N, Nashville, Tennessee 37203.
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
References to “Dispute” mean any claim, conflict, controversy, disagreement between the Parties arising out of, or related in any way to, these Terms (or any Terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation or enforcement of these Terms or any Terms contemplated by the Terms.
References to a “Customer” mean any person or entity who accepts a Provider’s offer of sale of a Product and promises to pay therefor.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching Party would wish to immediately terminate these Terms because of that breach.
References to a “Mobile Application” mean any mobile software application designed, developed, and/or made available by us related to the Services and available through the iTunes, Google Play, and any other mobile software application stores.
References to a “Product” mean a product designed, developed, manufactured, supplied, sold, and/or otherwise distributed by a Provider, including but not limited to goods, services, and/or experiences.
References to a “Provider” mean a seller of goods, services, and/or experiences who advertises the same for sale via the Services either directly or through the use of a third-party API. For the avoidance of doubt, a Provider may be either an individual or entity.
References to the “Services” mean any and all services offered by us, including but not limited to Product marketplace services offered via the Mobile Application and/or the Site.
References to the “Site” mean the Web site bearing the URL www.stampmemories.com and/or any other Web sites owned and/or operated by us related to the Services.
References to “us,” “we,” “our,” and/or “Stamp Memories,” mean Stamp Memories, LLC.
References to “you,” and/or “User” mean the User of Services, whether as a Provider or Customer, as well as general users of our Site and Mobile Applicable.
1.2. Agreement to be Bound.
SECTION II: GENERAL PROVISIONS
2.1. About Us; Stamp Memories not Provider or Employer; No Endorsement.
Stamp Memories acts as a marketplace to allow Users to buy and sell Products. As an online marketplace provider, we do not offer for sale, provide, endorse or promote any Provider and/or Product, and we have no control over the quality, safety, morality or legality of any aspect of any Product listed for sale, the truth or accuracy of the listings, the ability of Providers to provide Products sold, the identity of any Provider or Customer, or the ability of Customers to pay for items purchased. We do not and cannot ensure that a Provider or Customer will actually complete a transaction. If you rely on any of the information provided by or on the Site or the Mobile Application, you do so solely at your own risk.
You acknowledge and agree that we do not sell or purchase, offer to sell or purchase, invite to sell or purchase, or make or solicit any offers. IN ALL INSTANCES ALL SALES ARE ADVERTISED, SOLICITED, OFFERED, ACCEPTED, MADE, PROVIDED BY AND OTHERWISE DELIVERED BY VENDORS WITH WHOM A CUSTOMER DIRECTLY CONTRACTS. AT NO TIME WILL A CUSTOMER/SELLER RELATIONSHIP EXIST BETWEEN US. In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law.
Furthermore, STAMP MEMORIES SHALL AT NO TIME BE CONSTRUED AS AN EMPLOYER OF ANY PROVIDER. PROVIDERS ARE INDEPENDENT INDIVIDUALS AND/OR ENTITIES WHO OFFER PRODUCTS FOR SALE VIA THE SERVICES. Stamp Memories exercises no control or discretion over Providers except for such prohibited activities as may be set forth in this Agreement.
2.2. Accuracy, Completeness and Timeliness of Information.
We are not responsible if information made available on the Site or the Mobile Application or via the Services is not accurate, complete or current. You acknowledge that the Site and the Mobile Application are provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. You acknowledge further that any reliance on the Site or the Mobile Application or any representation of a Provider or Customer is at your own risk.
2.3. Errors in Site or the Mobile Application.
We do not warrant that any errors in the Site or the Mobile Application will be corrected.
2.5. Modifications and Changes to the Services, Site or the Mobile Application.
We may modify, add to, suspend, or delete any aspect of the Services, Site or the Mobile Application, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
2.6. Access to Services, Site or the Mobile Application.
Though we try to make the Services, Site and the Mobile Application available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Services, Site or the Mobile Application will be at all times available.
We do not warrant that your computer, tablet, and/or smartphone will be able to access and/or support the Site or the Mobile Application.
2.7. Right of Refusal, Limitation, Discontinuation, and Termination.
We reserve the right to refuse to provide access to the Services, Site or the Mobile Application for any reason at any time in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit or cancel a User Account (as defined in Section 3.1) for any reason whatsoever. In the event that we make a change to or cancel an Account, we may attempt to notify you by contacting you at the e-mail address provided at the time your Account was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account termination.
2.8. Prohibited Uses of Services, Site and the Mobile Application.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Services, Site or the Mobile Application: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Services, Site or the Mobile Application; (c) to violate any international or governmental regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services, Site or the Mobile Application; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Services, Site or the Mobile Application. We reserve the right to terminate your use of the Services, Site or the Mobile Application for violating any of the prohibited uses or for any other reason in our sole and exclusive decision, without recourse by you.
SECTION III: ACCOUNTS, USE OF THE SERVICES
3.1. Online Accounts.
3.2. Sharing of Accounts, Transfer Prohibited.
You agree you shall not share, sell, trade, or transfer your Account to any other person or entity.
3.3. Account Guidelines.
The Site and the Mobile Application may contain the ability to communicate with other Users on one or more platforms, comments sections, discussion forums, Web sites, landing pages, social media outlets, sales channels, and/or other interactive features, (hereinafter "Interactive Areas,”) in which Users and Third Parties may communicate. For the avoidance of doubt, the definition of an Interactive Area shall include Provider’s Product sales pages and communications between Providers and Customers. By participating in Interactive Areas, you agree and acknowledge that you:
Shall not upload, distribute or otherwise publish to the Site or the Mobile Application any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material; and
Shall not threaten or verbally abuse other Users, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or "spam”; and
Shall not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc. Hate speech of any kind is grounds for immediate and permanent suspension of access to all or part of the Interactive Areas and use of the Services, Site or the Mobile Application; and
Shall not use the Interactive Areas to distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or services except for the sale of goods in the scope envisioned by the express purpose of the Services, Site or the Mobile Application and
Shall not upload, post or otherwise transmit any content that violates any law or engage in activity that would constitute a criminal offense or give rise to a civil liability; and
Shall not post unauthorized commercial communications (such as spam); and
Shall not upload, post or otherwise transmit any content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them; and
Shall not upload, post or otherwise transmit content that does not generally pertain to the designated topic or theme of any Interactive Area; and
Shall not impersonate any person or entity, including, but not limited to, any of our employees, or falsely state or otherwise misrepresent your affiliation with any person or entity; and
Shall not interfere with any other User's right to privacy, including by harvesting or collecting personally-identifiable information about other Users of our Interactive Areas or posting private information about a Third Party; and
Shall not engage in unlawful multi-level marketing, such as a pyramid scheme; and
Shall not upload, post or otherwise transmit any content, software or other materials which contain a virus or other harmful or disruptive component; and
Shall not interfere with or disrupt the Services, Site, the Mobile Application, the Interactive Areas or the servers or networks connected to the same, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, Site, the Mobile Application, and/or the Interactive Areas; and
Users agree further and acknowledge that any profile they create may be edited, removed, modified, published, transmitted, and displayed by us, and they waive any rights they may have in having the material altered or changed in a manner not agreeable to them.
3.4. Rights in Submissions.
Should you submit, display, publish or otherwise post any content to an Interactive Area, including but not limited to listings and Terms of Sale (as defined in Section IV) (“Submissions,”) you agree to grant to us and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such Submissions in any and all media now known or hereinafter developed for hosting, indexing, caching, distributing, tagging, marketing, and for all other lawful purposes without the requirement to make payment to or seek permission from you or to any third party.
You represent and warrant that you own or have a valid license to use any and all Submissions and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Submissions does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
3.5. Right to Monitor.
We shall have the right (but not the obligation) to monitor your Account and all activity and communications in an Interactive Area in our sole and exclusive discretion.
3.5. Verification of Users.
All Users wishing to participate in the buying or selling of any Product shall be required to verify their identities to our satisfaction. This may include but is not limited to providing proof of identity (such as via a passport or other photo-bearing piece of identification) and residence (such as via a current utility bill.) Providers may additionally be required to provide us with tax-withholding information, including but not limited to a W-9 or similar forms if and when applicable. Notwithstanding the forgoing, Stamp Memories does not bear any responsibility and cannot be held liable for the verification or non-verification of a User’s identity.
All Providers are encouraged to formally have their Accounts verified by our background check provider, Accurate Background Checks. Instructions regarding the same may be accessed through a Provider’s Account settings. By registering to use the Services you consent to a background check being completed on you and the results thereof being provided to other Users and to us and our third-party affiliates and vendors.
4.1. Unauthorized Business.
In addition to the forgoing prohibited uses, our Services may not be used by a Provider to cause us to sell on his, her, or its behalf any of the following Products, (hereinafter “Unauthorized Business:”) (a) sale of adult goods or services; (b) sale of products or services in the following sectors: gambling, securities, insurance, pharmacy, drugs, arms and weapons or other highly-regulated sectors; or (c) for sales of illegal goods or services, which shall include but not be limited to illegal software or illegal downloads such as music, films, or games.
4.2. Liability for Chargebacks; Revocations; Refunds.
Provider shall be solely responsible for refunds, chargebacks, revocations, reversible payments or payments that are fraudulent or otherwise unauthorized, and we shall have the right to collect from Provider any and all fees associated therewith. For the avoidance of doubt, the ultimate determination as to whether to grant a Customer refund shall rest with Stamp Memories, without recourse by Provider.
4.3. Compliance with all Terms of Sale.
All sales shall be binding. Provider agrees and acknowledges that he, she or it, and not us, shall be solely responsible for delivery and provision of any and all purchased Products to Customers and that a contract for sale arises at the point where a Customer utilizes the Site or the Mobile Application to purchase a Product. Every sale shall be subject to the laws applicable thereto, but there shall not be implied any right that is not a legal right and that is not set down in these Terms. Providers shall be obligated to ship or otherwise provide the Product ordered or otherwise complete the transaction with the Customer in a prompt manner in accordance with the deadlines set forth in the Provider’s marketing materials, listing description, and “Terms of Sale.” All Terms of Sale and listings shall be subject to the approval of Stamp Memories and may be removed by Stamp Memories, without advance notice, for any or no reason whatsoever.
4.4. Provider Warranties; Restrictions.
In addition to the Unauthorized Business and Prohibited Use of the Services, Site and the Mobile Application set forth herein, Provider warrants that any Products sold to Customers (a) are not: illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to any Third Party; (b) have not been identified by the U.S. Consumer Products Safety Commission and any other regulations set forth by the countries of Provider and Customer as hazardous to consumers and, therefore, are not Products subject to a recall; (c) are not counterfeit; and (d) do not offend against the law of any country whose citizens might purchase the Products. Provider warrants further that he, she, or it owns all copyrights, trademarks and other intellectual property related to any Product sold via the Services, or that Provider has the permission of the intellectual property rights holder (a) to place the Product into the stream of commerce; (b) to receive the net proceeds of such sales as arise; and (c) to defend the intellectual property in the Product. Finally, Provider warrants and represents that he, she, or it has all licenses and authorizations required for performance of these Terms. Upon our request, Provider shall provide us with sufficient documentary evidence of such authorization or waiver. We are not obliged to require such documentary evidence, and the fact that we have not requested such documentary evidence shall not be deemed in any way as a statement as to whether or not such authorization or waiver is required.
4.5. Listing Description.
By listing a Product for sale, Provider must accurately describe the Product and all terms of sale, including but not limited to expiration dates for vouchers, dress code or other Provider-specific rules, and cancellation and refund policies. Provider’s listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that Product and must be listed in an appropriate category with appropriate tags. If the available quantity is more than one (1), all Products in that listing must be identical. All Terms of Sale and listings shall be subject to the approval of Stamp Memories and may be removed by Stamp Memories, without advance notice, for any or no reason whatsoever.
4.6. Fee Avoidance Prohibited; Accurate Shipping Fees Required.
For goods sold via the Services, the purchase price stated in each Product listing must be an accurate representation of the sale price and shall not fall below any Manufacturer’s Suggested Retail Price, (“MSRP,”) and/or Minimum Advertising Price, (“MAP,”) policy to which the Provider is bound. Providers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the Product. Providers may not charge excessive shipping fees or otherwise avoid fees, and any shipping fees charged shall not exceed the true and accurate shipping costs of the Product. Providers may not alter Product prices after a sale for the purpose of avoiding any associated transaction fee(s), misrepresent the shipping location of any Product, or use another Provider's Account without our express, written permission.
4.7. Ethical Selling Tactics Required.
Providers shall utilize ethical selling tactics when promoting any Product, including refraining from the making of false and/or misleading statements regarding the Product and/or Provider. Providers expressly agree to conduct themselves at all times in an ethical, moral, and lawful manner.
4.8. Compliance with Law.
In addition to the other requirements to comply with laws, regulations, and terms set forth herein, Providers agree to obey any and all local, state, and federal regulations and laws regarding solicitation and product sales.
4.9. Freedom of Promotional Methods.
Notwithstanding the forgoing, Providers shall be free to choose on which social media platforms and through such other mediums and sales channels they promote the Product, including the ability to choose his, her, or its own operation means, methods, locations, and hours.
4.10. Right of Refusal.
Provider may refuse to sell a Product to any User for any or no reason whatsoever so long as such a refusal does not violate federal, state, or local laws or any other rule or regulation.
4.11. Policies, Terms of Sale Required.
4.12. Service Level.
Providers shall be required to maintain a high level of customer satisfaction. In the event Extra Charges (as set forth in Section 5.6) are levied against a Provider twice in any calendar year Provider shall be banned from further use of the Services. In no event shall any fees paid by Provider be returned for any reason whatsoever. We may further hold back any revenues which may become due and owing until any chargeback period has expired, which may be up to one hundred eight (180) days from the date of sale or date of voucher expiration, whichever is later.
SECTION V: SERVICE FEES FOR PROVIDERS
5.1. Free Trial.
Providers wishing to test out our Services may do so via the making of five (5) free listings, where the same may be expressed as a Listing Fee credit of Five U.S. Dollars and No/Cents ($5.00) and may not be converted to a cash value or otherwise withdrawn by Provider. In the event a Provider provides billing information at the time of registration for a free trial, Provider understands and agrees that Provider shall be automatically billed the Service Fees (as defined in Section 5.2) associated with the making of any further listings or access to premium Services.
5.2. Listing Fee.
Except as noted in Section 5.1, supra, all listings shall be subject to a listing fee of One U.S. Dollar and No/Cents ($1.00) per listing (the “Listing Fee”) or as may otherwise be set forth on the Site and Mobile Application. We may change such Listing Fee at any time in our sole and exclusive discretion, without advance notice. For the avoidance of doubt, each offering by Provider shall be treated as a separate listing except to the extent an offering is part of a sequence or package or otherwise contains multiple dates of service for a single purchase. Listing Fee credits must be purchased by Provider in amount of ten (10) listings and shall not be subject to refund for any reason whatsoever. Providers who so desire may register for automatic deposit of Listing Fee credits from a linked bank account or credit card as descried in further details on the Site and/or Mobile Application or otherwise moved from available payout funds.
5.3. Consulting Fees.
Providers who wish to take advantage of any consulting services as may be offered by us from time to time (such as Account creation, custom development, third-party integrations, or consulting services and listing assistance services) shall be charged at a rate of One Hundred U.S. Dollars and No/Cents ($100.00) per hour (“Consulting Fees.”) Please contact us at email@example.com to discuss your options regarding the same.
5.4. Premium Service Fees.
In addition, Providers who wish to take advantage of unlimited listings per month shall be required to pay a monthly service fee as set forth at all times on the Site and the Mobile Application as well as at the point of sale (the “Premium Service Fee.”) Such Premium Service Fee shall be due on the first (1st) day of registration for such premium services to be provided the following month and shall continue to be billed on the same day of each month until cancelled by Provider no later than forty-eight (48) hours prior to the next billing date by writing to us at firstname.lastname@example.org or via Provider’s Account settings, if offered. The Premium Service Fee shall be subject to change without notice in our sole and exclusive discretion, upon thirty (30) days’ advanced written notice.
5.5. Transaction Fees.
All sales made via the Services shall be subject to a per-purchase transaction fee, which shall be expressed as a percentage of the Product purchase price (“Transaction Fee”) in the amount of Eighteen Percent (18%) per transaction and which shall further be set forth at all times on the Site and the Mobile Application as well as at the point of sale and/or listing, as applicable. In the event a Provider wishes to optimize a listing, such as by placing it higher on the search page, a higher Transaction Fee may apply. The Transaction Fee for future Product sales shall be subject to change without notice in our sole and exclusive discretion.
5.6. Chargebacks; Revocations; Refunds.
If, in a given month, an unreasonable amount of Customer complaints are made about the quality of Provider’s Product, including but not limited to (a) non-delivery of orders, (b) non-honoring of purchase vouchers for events and activities, (c) improper description of Product, and/or (e) non-responsive customer support of Provider, we reserve the right to charge an amount of Thirty U.S. Dollars and No/Cents ($30.00) per such incident of Customer complaint related to the Product for the rest of that month, (an “Extra Charge.”) “Unreasonable amount of Customer complaints about the quality of the Provider’s Product” shall mean that in any period of one (1) month more than three (3) Customers complain about the quality of Provider’s Product. We shall, without delay, give notice to Provider of the fact that the conditions for an Extra Charge are fulfilled and that we shall be charging the Extra Charge for the rest of that month, and provide documentation on the fulfillment of the conditions for an Extra Charge to Provider.
5.8. Withholding of Funds.
Where we, in our reasonable opinion, are required to do so by law, we reserve the right to withhold funds for Product sales that we reasonably deem suspicious with regard to money laundering, Unauthorized Business, fraud or other illegal activities or in case of any other chargebacks or revocations.
When you create your Account, you shall have the opportunity to designate a deposit account into which you wish to be paid out. Once funds for the purchase have cleared our payment processor, they shall be available for withdraw to your designated deposit account less any fees. Payouts shall not occur automatically and must be initiated by the Provider. Notwithstanding the forgoing, funds for sales of experience-related Product vouchers shall be held by us until the voucher is utilized or the expiration date thereof, whichever comes first.
You may view all pending revenues via your Account. Except as required by law, you shall remain solely and exclusively responsible for retaining permanent records of all transactions processed via our Services.
Providers who wish to use revenue earned toward Listing Fees or Product purchases may do so through their Account settings.
Payment processing services for providers on the Stamp Memories platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a provider on Stamp Memories, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Stamp Memories enabling payment-processing services through Stripe, you agree to provide Stamp Memories accurate and complete information about you and your business, and you authorize Stamp Memories to share it and transaction information related to your use of the payment processing services provided by Stripe.
5.10. Responsibility for Accurate Pay Out Information.
You agree to provide current, complete and accurate deposit account information for payout. You agree to promptly update your account and other information, including your address, email address and bank account information, so that we can complete your transactions and contact you as needed.
5.11. Payout Schedule.
5.12. Right to Set-Off; Collection Rights.
We are entitled to set-off any and all claims against amounts payable to Provider. In addition, to the maximum extent provided by law, we may collect any and all obligations due and owing by you to us by deducting them from your pending transactions in the deposit account. Fees shall be assessed at the time of transaction processing and will be deducted from the funds received. Your failure to pay all amounts due and owning shall be deemed an immediate breach of this Agreement for which you will be liable. You further agree to pay all fees and costs, including but not limited to attorneys’ fees and costs, incurred by or on our behalf arising from or related to the collection of any unpaid obligations by you.
5.13. Payment of Taxes.
Providers shall be responsible for paying any and all state, local, and federal taxes applicable to any sales of items facilitated by the Services and shall provide taxpayer information to Stamp Memories, upon our written request. In the event a Provider meets taxation eligibility requirements, Stamp Memories may provide taxation documents to such Provider.
Listing Fees, Consulting Fees, Premium Service Fees, and Transaction Fees shall not be refundable for any reason, including but not limited to lack of Product sales, inability to provide Products purchased, the failure of a Customer to pay for a Product purchased, refunds made to Customers or chargebacks, dissatisfaction with the Services, or for any other reason whatsoever except for in instances of our material breach of this Agreement.
5.15. Account Credits.
Providers who refer new Users to Stamp Memories may earn additional Listing Fee credits as set forth on the Site and/or Mobile Application upon a referred Customer’s first completed purchase via the Services.
SECTION VI: TERMS OF SALE FOR CUSTOMERS
6.1. Sale Prices.
The prices and the terms of payment for Products are displayed at all times on the Providers’ listings, including at the point of purchase. In the event a Customer purchases a good, the prices quoted on the listing therefor may not include any applicable shipping and handling, unless indicated otherwise, or sales taxes, if applicable, which will be added to the final purchase price after the Customer enters his or her details. Purchasers of goods are responsible for the payment of any shipping and handling charges, unless indicated otherwise, as well as local VAT and/or other taxes that may apply to an order.
6.2. Delivery; Import.
Customer is responsible for selecting Customer’s preferred delivery method and carrier at the point of purchase from those methods offered by Provider for purchases of goods.
6.3. Payment Method.
Purchases for such Products may be made using a major credit or debit card through our payment processor, Stripe.
6.4. Refunds, Exchanges, Cancellations.
Refunds, cancellations, rescheduling possibilities, and exchanges will be accepted pursuant to the applicable Provider’s Terms of Sale or as may otherwise be required by law. For the avoidance of doubt, all exchanges and rescheduling of events and activities shall be done directly between the Provider and Customer.
6.5. Compliance with Listing and Provider Policies Customer Responsibility.
From time to time, Providers may set specific expiration dates for Product vouchers, dress codes, fitness-level requirements, or other specific terms of sale. Customer is solely responsible for reviewing such Terms of Sales and complying therewith.
6.6. Gift Cards.
From time to time Stamp Memories may provide for sale gift cards that may be used towards purchases made via the Services. Such gift cards shall not expire and may be applied toward any Product purchase unless otherwise noted. Gift cards may not be exchanged for cash value.
SECTION VII: INTELLECTUAL PROPERTY; PRIVACY
7.1. Intellectual Property Rights Not Waived.
Furthermore, all material displayed or transmitted on this Site and the Mobile Application, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics, (“Materials,”) are owned by us and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Site or the Mobile Application, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on this Site and/or the Services for personal, non-commercial use only, provide that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed on this Site or the Mobile Application without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to email@example.com.
7.2. Feedback to Stamp Memories.
You may have the opportunity to provide reviews, suggestions, ideas, and feedback to Stamp Memories, (collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any Third Party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User's personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to Stamp Memories or its initiatives, (your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independently-developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by Third Parties, or independently-developed or considered by us, shall be without obligation to you.
7.3. Grant of License.
7.4. Confidential Information of Customers.
7.5. Provider Reviews.
Customers may have the opportunity to review Providers and/or Products. To the extent a Customer provides a review, Customer hereby warrants and confirms that such review is based on Customer’s personal experiences with the Provider and/or Product, is truthful and accurate, and contains no false, libelous, or defamatory statements. For the avoidance of doubt, Stamp Memories takes no responsibility and assumes no liability for any reviews of Providers posted, stored or uploaded by a Customer or any third party, or for any loss or damage thereto, nor is Stamp Memories liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity a Provider and its potential customers may encounter. As a provider of interactive services, Stamp Memories is not liable for any statements, representations or reviews provided by Customers.
SECTION VIII: Third-Party Advertisements, Promotions, and Links
8.1. Third Party Advertisements and Promotions.
We may, from time to time, run advertisements and promotions from third parties on the Site or the Mobile Application. Your dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Site or the Mobile Application.
8.2. Use of Third-Party Tools.
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the Site or the Mobile Application is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party providers.
8.3. Third-Party Links.
Certain content, products and Services available via our Site or the Mobile Application may include materials from third parties.
Third-party links on the Services may direct you to third-party Web sites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any third-party materials or Web sites and/or services, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third party with whom you connect via the services. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION IX: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
9.1. Disclaimer of Warranty; Limitation of Liability.
(A) YOU AGREE THAT USE OF THE SITE AND the Mobile Application IS AT YOUR SOLE RISK. NEITHER US nor our AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE use of the Site or the Mobile Application SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO we MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, SITE or the Mobile Application OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(C) ALTHOUGH ALL INFORMATION AND MATERIALS CARRIED ON THE SITE AND the Mobile Application ARE BELIEVED TO BE RELIABLE, WE MAKE NO REPRESENTATIONS, NEITHER EXPRESSLY NOR IMPLIEDLY, AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF SERVICES, THE SITE or the Mobile Application.
(D) IN NO EVENT SHALL WE, OUR EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, CONTRACTORS, VENDORS, AND/OR OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, personal injury or death, property damage, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, SITE or the Mobile Application, ANY INTERACTIONS WITH A CUSTOMER OR PROVIDER, AND/OR ANY PRODUCT PURCHASED VIA THE SITE or the Mobile Application.
(E) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY utilizing THE SERVICES, SITE AND MOBNILE APPLICATION YOU ACKNOWLEDGE AND AGREe TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE Utilize THE SERVICES, SITE or the Mobile Application.
(F) Stamp Memories' LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF Stamp Memories’ SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND VENDORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO STAMP MEMORIES IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED U.S. DOLLRS AND NO/CENTS ($100.00,) WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates and respective directors, officers, employees and agents.
You agree to defend, indemnify and hold us harmless, as well as our affiliates and vendors and respective directors, officers, EMPLOYEES, and agents, from and against all claims, SUITS, and expenses, including attorneys' fees, arising out of OR RELATED TO (a) YOUR USE OF THE SERVICES, SITE AND/OR the Mobile Application; (B) your noncompliance with or breach of this Agreement; (C) your use of third-Party SERVICES, products, links, advertisements, and/or tools; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; (E) the unauthorized use of the SERVICES by any other person using your information; AND (F) YOUR INTERACTION WITH ANY PROVIDER AND/OR CUSTOMER AND USE OR NON-USE OF ANY PRODUCT PURCHASED OR OFFERED FOR PURCHASE VIA THE SERVICES.
SECTION X: GOVERNING LAW; ARBITRATION
10.1. Governing Law.
These Terms shall be governed and construed in accordance with the laws of Tennessee without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the courts located in Davidson County, Tennessee, and any cause of action that relates to or arises from these Terms, the Services, Site, or the Mobile Application must be filed therein unless subject to the binding arbitration provisions of Section 10.2, infra.
Any and all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in Davidson County, Tennessee. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in the software services industry and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. No claims and disputes arising under or relating to this provision may be brought by a User more than one (1) year after the event giving rise to the cause of action has occurred or should diligently been discovered. Notwithstanding the forgoing, the parties shall be free to bring a request for injunctive relief before a court of competent jurisdiction in the event of immediate and irreparable harm.
10.3. Claims between Providers and Customers.
Notwithstanding the forgoing, for disputes, claims, or controversies arising between Providers and Customers, you agree to work together to amicably resolve the dispute between yourselves. In the event the same cannot be resolved, Stamp Memories retains the right (but not the obligation) to resolve a claim in its own discretion.
SECTION XI: MISCELLANEOUS
11.1. Customer Service.
Should you have any questions, comments or concerns regarding the Site or the Mobile Application, customer service and technical support may be contacted at any time via firstname.lastname@example.org for Customers and email@example.com for Providers. We strive to return all customer service inquires within forty-eight (48) business hours. We may also be contacted between the hours of 8 a.m. and 5 p.m. Central Time, Monday through Friday.
11.2. Affiliate Disclosure.
We may have an affiliate relationship with third-parties and affiliates to whose products and/or services we link and promote through the Site and/or the Mobile Application. Because of this relationship, we may earn a commission on products purchased by a User from a third-party affiliate.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its Terms.
11.5. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
11.7. Rights of Third Parties.
These Terms do not give any right to any third party unless explicitly stated herein.
11.8. Relationship of the Parties.
The parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into Terms of any kind in the name of the other party.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.10 Electronic Communications.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Stamp Memories, LLC, 2817 West End Avenue, Suite 126 N, Nashville, Tennessee 37203, and in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
11.12. Effective Date.