Terms of service

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - 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 return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. 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 anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 4 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
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.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

 

MELINY TERMS AND CONDITIONS

Article 1 - General and Applicability

1.1 These General Terms and Conditions of Sale (“Conditions”) comprise the basis on which MELINY sells its products (the “Goods”) and shall form an integral part of any Agreement. In these Conditions MELINY and the counter party to any Agreement shall be referred to as “Seller” and “Buyer”, respectively. Seller and Buyer may also be referred to as “Party” and together as “Parties”. “Agreement” means the relevant Confirmation and these Conditions. “Confirmation” means the confirmation in writing (including confirmation by email, per Seller’s EDI system, Seller’s web shop or through any other digital (communication or order) system of Seller) by Seller to Buyer unambiguously expressing Seller’s acceptance of Buyer’s order. Any order requires the issue of a Confirmation by Seller to Buyer to constitute an Agreement binding upon Seller.

1.2 No other general terms and conditions shall be applicable or supplement or set aside (any part of) these Conditions unless expressly agreed to by Seller in writing. Reference by Buyer to any other general terms and conditions is hereby explicitly rejected.

Article 2 - Offers, Confirmation and Agreement

2.1 Any offer of Seller shall not be an offer but merely an invitation to enter into negotiations with respect to the sale of Goods. For completeness’ sake, all Seller’s offers (including actual offers as well as invitations to enter into negotiations), also including verbal offers or other declarations by Seller’s (sales) representatives and/ or employees, either as price lists or otherwise (“Offers”) are completely free of obligation and do not oblige Seller in any way to conclude a contract with Buyer.

2.2 No Agreement will be constituted but after Confirmation by Seller after receipt of the order or after Seller has commenced to carry out the order.

2.3 Seller is allowed to accept and reject orders of Buyer at its sole discretion. Buyer will be entitled to cancel an order only after receiving written consent from Seller, which consent may be made subject to conditions as deemed appropriate by Seller.

2.4 Seller is at all times entitled to effect adjustments in the Goods to be delivered, in order to improve them or comply with government regulations.

2.5 Any and all images and specifications of Goods in catalogues, price lists, advertisements, as well as any samples of Goods or any images and specifications of Goods shown at any sales events or meetings of Seller or where Seller is present etc. must be deemed to be representations by approximation only, unless Seller has explicitly indicated the contrary in writing with regard to a specific delivery.

2.6 Seller will be entitled to charge the costs of any packaging separately. The packaging will not be taken back. Should Seller, however, be obliged by law or any regulations to take packaging back, any costs related to taking back or processing packaging will be borne by Buyer.

2.7 If Seller, by virtue of law, is under any obligation, other than resulting from an improper performance, to take back any Goods sold, Buyer shall pay to Seller all costs related to such taking back of the Goods.

2.8 All Agreements are entered into on the assumption that Buyer is sufficiently creditworthy and if Seller has any reason to doubt such, Seller may require full or partial payment in advance or set other payment conditions for delivery and suspend, delay or cancel any credit delivery or any other performance of its obligations.

Article 3 - Delivery

3.1 Delivery terms shall be set out via Confirmation and be interpreted by Seller at Seller’s discretion. In case no other delivery term is declared applicable in the Confirmation, delivery of the Goods takes place by destination indicated by Seller.

3.2 Communicated or acknowledged delivery dates are approximate only and shall not, unless explicitly stated otherwise, be considered as fatal terms. Seller shall not be liable, nor in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Buyer will give Seller a written “notice of failure to deliver” and a reasonable time, which will be no less than 30 days, in within which to cure. Buyer’s sole remedy for Selling failing to cure such breach within such reasonable time will be specific performance.

Where the parties will have expressly agreed that time is of the essence, Seller must be declared to be in default in writing in the event of late delivery and be granted a reasonable term of at least 30 days as of the date of the receipt of notification to fulfill its obligations. In the event that such extended term is exceeded, Buyer will be entitled to dissolve the Agreement or part of the Agreement only with respect to the Goods not delivered within such reasonable time. In such an event, Seller will not be liable to pay damages, unless such damages are the consequence of gross negligence or willful misconduct of Seller’s executive management.

3.3 Seller is entitled to deliver the Goods sold piecemeal.

3.4 Buyer is obliged to accept delivery of the Goods upon Seller’s first request thereto. If Buyer fails to take delivery Buyer shall be liable for all costs and expenses, including but not limited to transport, duty, storage and re-delivery, Without prejudice to Article 2.3 above, any requests from Buyer to cancel a confirmed order must be received by Seller in writing no later than the 31st day before the scheduled shipping date.

Article 4 - Retention of title

4.1 The Parties expressly acknowledge and agree that the Goods may only be re-sold in the context of normal business activity of the Buyer and that as a security for payment by the Buyer to the Seller the Goods are subject to the reservation of legal title to the Goods. Seller shall retain title to all Goods delivered and to be delivered to Buyer until Seller has received full payment of all purchase amounts of all Goods delivered and to be delivered, as well as any amounts owed by the Buyer pertaining to work performed by Seller in connection with such purchase agreements and any claims pursuant to any failure in the performance of such purchase agreements on the part of the Buyer.

4.2 Buyer will be obliged to store the Goods delivered under retention of title with due care, ensuring that they are recognizable as the property of Seller. In addition, it will be obliged to insure such Goods against, inter alia, fire and water damage and theft. Buyer will pledge to Seller any claims it has pursuant to such insurance policies upon Seller’s first request, as additional security with respect to Seller’s claims against Buyer.

4.3 If Buyer fails to fulfil its obligations or if in the opinion of the Seller reasonable grounds exist to suggest that Buyer shall fail to do so, Seller shall be entitled to take possession of the Goods which are subject to retention of title or have the Goods collected from the Buyer or from third parties holding them for Buyer. Buyer shall cooperate accordingly and provide any assistance necessary to affect the foregoing. Buyer will bear the costs of recovery, without prejudice to Seller’s right to further damages.

Article 5 - Purchase price

5.1 The price for the Goods is based on the cost price for the Goods applicable at the time of the Offer. In case of a change in the cost price resulting from any government measures, an increase in the prices of energy, raw materials or other materials necessary for the manufacture of the Goods ordered by Buyer and/or an increase in freight, storage, insurance charges, wages and exchange rates occurring prior to the agreed date of delivery, Seller shall have the right to increase the price of the Goods ordered accordingly, even if such an increase was foreseeable at the time of concluding the Agreement.

5.3 In the event the increase of the cost price for the Goods exceeds 15%, Buyer shall have the right to cancel the Agreement within 3 days after Buyer has received the prior written notice of each such an increase.

Article 6 - Payment terms

6.1 The entire purchase price shall be paid, or the remainder thereof in the event of advance payment, effectively in the currency referred to in the Confirmation, to the bank account of Seller in accordance with the payment terms stated on the invoice or otherwise within 8 days after the date of invoice. Buyer shall not be entitled, on any basis whatsoever, to suspend performance of its obligations under any offer, order, Offer, Confirmation, Agreement, these Conditions or any ensuing agreement, and Buyer shall neither be entitled to any deduction, discount or set-off. Submission of a complaint will not suspend Buyer’s obligation to pay.

6.2 If Buyer fails to pay any amount when due, then, without prejudice to any other right Seller may have:

6.3 In the event that Seller is fully or largely successful in legal proceedings against Buyer, Buyer will be obliged to compensate all costs incurred by Seller in connection with such proceedings, even to the extent that such costs exceed the cost award made by the court. Seller may invoke this clause irrespective of whether Buyer has appealed against the relevant judgment at the court of appeal or the Supreme Court.

6.4 Amounts paid by Buyer shall be credited by Seller against the debt’s receivable by Seller from Buyer, including those pursuant to the previous paragraphs, in the chronological order of the due dates of the debts.

6.5 Without prejudice to Article 6.1 claims of Buyer regarding the purchase price referred to in any invoice shall be made in writing and shall be sent by registered mail and must be received by Seller within 15 days after the invoice date, failing which any such claims shall lapse.

Article 7 - Warranty, complaints and inspection

7.1 Seller warrants that under normal use the Goods, shall, be free from defects in material or workmanship. Any Goods not meeting this warranty shall be deemed defective.

7.2 The Goods delivered must be checked by or for Buyer upon delivery with respect to numbers and visible defects and any shortages or visible defects must be reported to Seller immediately after delivery. Buyer must report defects not visible upon delivery within 48 hours of their discovery, though in any event within 48 hours after the time that Buyer should reasonably have discovered them. Buyer will not be entitled to any claim if the defect results from any normal wear and tear, incorrect operation, installation, storage, maintenance or from transport, misuse or improper handling by Buyer (i.e. all use that is deemed as such according to industry’s best practices), or any other event that must be attributed to the Buyer.

7.3 Buyer will be obliged to perform the inspection or to have the inspection performed with due care, upon receipt of the Goods. Buyer will bear the risk for inspecting the Goods by means of random checks and may not rely on the fact that it did not observe a defect that was visible and could have been discovered upon delivery because it—or a third party engaged by it—did not inspect the entire shipment.

7.4 Any such claims of Buyer need to be supported by evidence from an independent expert or surveyor.

7.5 Buyer may ship Goods returned under warranty claims only after Seller’s written consent. Where Goods are sent without such written consent or where the Goods are not found to be defective or non-conforming Buyer shall pay for the returned Goods as well as the freight, testing and handling costs associated therewith.

7.6 In the event of a complaint on good grounds, Seller will only be obliged - to be decided at Seller’s discretion - to replace the relevant Good or to credit or refund the amount charged in connection with the defective Good in whole or in part, according to its own reasonable judgment and to the exclusion of any other rights of Buyer by law.

7.7 Notwithstanding the foregoing, Seller shall have no obligations for breach of warranty in case of any deviations in shape, size and color that are customary in the industry or technically unavoidable.

7.8 Any and all claims for payment of an amount of money and/or replacement of the Good and/or supply of any missing part, on whatever basis, as well as any right to dissolve the Agreement will lapse at the earliest of the following times: a) upon late reporting pursuant to Article 7.2 or b) 12 months after the delivery date.

7.9 For completeness’ sake, this warranty and the warranty obligations set forth therein constitute Buyer’s sole remedy and Seller’s sole obligation with respect to any defective and/or non-conforming Good or breach of warranty and is subject to and without prejudice to Article 7.2 and Article 8.1 of these Conditions.

Article 8 - Liability

8.1 Seller’s total aggregate liability, on any basis whatsoever, with respect to any offer, order, Offer, Confirmation, Agreement, these Conditions or the Goods will be restricted to the provisions laid down in Article 7.6.

8.2 Seller will assume no liability with respect to damage as a consequence of or related to any errors or omissions in advice rendered by it.

8.3 Seller will not - irrespective of the legal basis of Buyer’s claim - be liable for any consequential damages, including but not limited to losses due to delays or loss of data, lost profits, missed savings and penalties forfeited by Buyer.

8.4 Nothing in these Conditions shall exclude or limit Seller’s liability in the event that the damage is the consequence of gross negligence or willful misconduct of Seller’s executive management.

8.5 The Buyer will compensate and indemnify Seller against any claims by third parties and all resulting costs in connection with any Goods or other products supplied by Seller.

Article 9 - Breach and Termination

9.1 Without prejudice to any rights or remedies Seller may have under these Conditions, the Agreement or at law, Seller may, by written notice to Buyer, suspend (further) performance or terminate with immediate effect the Agreement, or any part thereof, without any liability whatsoever, if: a. Buyer fails to make payment for the Goods when due; b. any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, any assignment is made for the benefit of creditors of Buyer, or a direct or indirect change occurs in the control of the business of Buyer; and c. Buyer violates or breaches any of the provisions of these Conditions and/ or the Agreement.

9.2 Upon occurrence of any of the above-mentioned events all payments to be made by Buyer under any Agreement shall become immediately due and payable. In addition Seller shall be entitled to claim full compensation for damages, lost profits and or interest.

Article 10 Intellectual Property

All current or future intellectual property rights regarding the Goods, including but not limited to patent, copyright, trademark or trade secret, stay vested in Seller. Seller herewith grants Buyer a limited non-exclusive, non-transferable license to, solely and directly in connection with the sale or advertising of Seller’s Goods, use these intellectual property rights pursuant to the following term and condition: Any websites displaying Seller’s Goods must meet Seller’s quality standards for product image and brand integrity set in annex I to these conditions.

10.1 We respect intellectual property laws. If anything is wrong, please send an email with all the details to melinyllc@gmail.com.

If you believe User-Generated Content or MELINY Content infringes copyright or trademark under U.S. or other national law, please notify our us immediately using the contact information provided herein. It is our policy to investigate any allegations of infringement brought to our attention. Please provide us with the following information in your notice of a suspected violation:

You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid. Some information provided in a notice of infringement may be forwarded to the user who posted the allegedly infringing content. In the U.S., under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see www.copyright.gov for more information about how to prepare or respond to a DMCA notice and/or www.uspto.gov/trademark for more information about trademark rights.

10.2 Third Party Links and Services

Our Services may link to, interact with or be available on third-party services or products such as social media and third-party devices. If you access such third-party services or products, be aware that different terms and privacy policies apply to your usage of such services.

Article 11 - Taxation

11.1 Where any excise duty, energy tax, VAT or other tax (“Tax”) becomes payable by Seller to a third party in relation to the supply, release from a tax warehouse or transport of the Goods, Buyer shall pay such Tax to Seller in addition to the sales price.

11.2 Where possible and on request of Buyer, Seller will apply an exemption or a low or zero percent Tax rate or a suspension scheme as provided for under the applicable legislation. Buyer will in such case provide Seller with all documents (including an annotated copy of the administrative accompanying document) and information reasonably requested by Seller in accordance with the applicable legislation. If any (additional) tax becomes due because Buyer has not timely provided Seller with such documents or information, or because of any fraud, loss or misappropriation in relation to the Goods, documents or information, Buyer shall indemnify Seller against all liabilities for such Tax which Seller reasonably needs to pay to a third party, including any interest, penalties and costs. If Seller is subsequently able to obtain a credit or repayment of such Tax from a third party, Seller shall reimburse Buyer the amount so credited or repaid less all reasonable costs, penalties and interest incurred by Seller. Parties undertake to inform each other of any relevant facts so that remedial action can be taken, and to take into account the interest of the other in any dealings with national fiscal/customs authorities to resolve disputes.

Article 12 - Force Majeure

12.1 Seller shall not be in breach if any obligation suffers from Force Majeure. Force Majeure includes, without limitation, strikes, lockouts and industrial actions, breakdowns of machines or tools or other breakdowns within Seller’s company, a shortage of raw materials, delay, transport problems, floods, fire, traffic impediment or transport problems, war or threat of war, mobilization, state of siege, disturbances or riots, in- or export impediment and any other governmental measure or regulation as well as any other circumstance that is beyond Sellers control and which would result in Seller’s inability to perform in accordance with the Agreement. Force Majeure must also be deemed to apply in the event that one or more of the above-mentioned circumstances occur within the companies of Seller’s suppliers and Seller cannot or could not perform its obligations, or cannot or could not perform such in good time, as a consequence.

12.2 In case of such a non-attributable failure, Seller is entitled to either (i) suspend the performance of the relevant part(s) of the Agreement for the period such a non-attributable failure continues or (ii) terminate the Agreement without any liability whatsoever.

Article 13 - Hardship

If, prior to the date of delivery of the Goods, the circumstances that existed at the date of conclusion of the Agreement should change to such an extent as to make it impossible for either party to be reasonably required to fulfill one or more of its obligations under the Agreement, and if such change could not have been reasonably foreseen by such Party, then Seller and Buyer shall jointly investigate, at the request of the injured Party, whether such hardship can be removed in a manner acceptable to the non-injured party. If no agreement is reached within a reasonable time, the injured Party shall be entitled to terminate the Agreement.

Article 14 - Compliance with laws

14.1 Each Party represents that it is duly authorized to enter into an Agreement with the other Party and represents that with respect to its performance there under, it will comply with all applicable laws. By accepting Seller’s Offer, entering into any Agreement and/ or accepting any Goods, Buyer agrees that it will not deal with the Goods and/ or documentation related thereto in violation of any applicable export or import control law and regulation.

14.2 Without prejudice to Article 7 and 8 above, Seller shall only be liable for compliance of the Goods with technical requirements or standards following from foreign legislation or regulations if before concluding an Agreement (i) such specific requirements or standards have been explicitly notified in writing by Buyer to Seller, and (ii) Seller will have expressly accepted in writing those requirements or standards.

Article 15 - Applicable Law, Competent Court

15.1 Any offer, order, Offer, Confirmation, Agreement, these Conditions or any ensuing agreement will be governed by and construed in accordance with the laws of the Netherlands.

15.2 The parties shall endeavor to settle amicably any dispute or claim arising out of or in connection with any offer, order, Offer, Confirmation, Agreement or these Conditions or any ensuing agreement by negotiation between executives who have authority to settle the controversy.

15.3 If the parties do not settle any such dispute or claim within 30 days after a party has first delivered written notice of such dispute or claim to the other party, then the parties shall submit the claim or dispute, save as provided for in Article 15.5 and 15.6 below, for final and binding arbitration in accordance with the Netherlands Arbitration Institute Arbitration Rules (the “Rules”). The arbitral tribunal shall consist of three arbitrators, unless the amount of claim as specified by the claimant in the arbitration does not exceed $250,000, in which event the arbitral tribunal shall consist of one, neutral arbitrator. The place of arbitration shall be New York, New York. The language to be used in the arbitral proceedings shall be English, and the arbitrator(s) shall apply New York State law. Without prejudice to any other rights or remedies that Seller may have, Buyer acknowledges and agrees that damages alone would not be an adequate remedy for any breach by Buyer and that accordingly Seller shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach and Seller will be entitled to apply for injunctive relief and other provisional measures either to the court competent to grant such injunction or order, or under the Rules for expedited arbitration.

15.4 Any business information submitted in the arbitration shall be kept secret at all times at the Arbitration Institute may adopt such measures as it deems appropriate to secure the confidentiality of such information also after the determination.

15.5 However, any claims in relation to Buyer’s failure to timely or fully pay any invoice due with respect to any Goods will be brought before the competent court of Amsterdam, the Netherlands.

15.6 The foregoing is without prejudice to the right of Seller to bring any claim with respect before the court that would have had jurisdiction in the absence of the provisions or Article 15.3 and Article 15.5

Article 16 – Social Networking and Logins

You may enable or log in to the Services via various online third-party services, such as social media and social networking services like Facebook or Twitter (“Social Networking Services”). To take advantage of these features and capabilities, we may ask you to authenticate, register for, or log into Social Networking Services on the websites of their respective providers. As part of this integration, the Social Networking Services will provide us with access to certain information you have provided to them, and we will use, store, and disclose such information in accordance with our Privacy Policy. Please remember the way Third Party Services (including Social Networking Services) use, store, and disclose your information is governed solely by the policies of those Third-Party Services, and we have no liability or responsibility for the privacy practices or other actions of any third-party website or service that may be enabled within the Services. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available in connection with Social Networking Services. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Social Networking Services.

16.1 Third-Party Applications

You may be able to access certain third-party links, applications, content, services, promotions, special offers, or other events or activities (“Third-Party Applications”) via our Services. If you choose to access these Third-Party Applications, you may be requested to log-in and sync your accounts with such applications. You are in no way obligated to use any Third-Party Applications, your access and use of such applications is entirely at your own risk, and we have no associated liability. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available by any Third-Party Applications. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third-Party Applications.

16.2 Third Party Products

Our Services may be accessed on third-party devices or other products (“Third Party Products”), and your ability to use certain features of the Services may require you to purchase Third-Party Products (e.g., fitness trackers). While we may recommend, promote, or market the products of certain partners, we have no responsibility for your acquisition or use of any Third-Party Products, and we do not guarantee that Third-Party Products will function with the Services or will be error-free. We hereby disclaim liability for all Third-Party Products, including any Third-Party Products offered by our partners.

16.3 Third-Party Services, Activities, and Events

Our Services may include the ability to discover, access or participate in certain services, activities, or events (“Third-Party Activities”). By way of example and not limitation, you can use the Meliny We Will site to access information about and register for third party volunteer opportunities. Third-Party Activities are offered and provided by Third Parties, not Meliny. Your attendance at and participation in Third-Party Activities is solely at your own risk. Meliny will not be liable for any act, error or omission of any Third Party, including, without limitation, any which arises out of or is any way connected with a user’s attendance, use of or participation in any Third-Party Activities initially discovered, booked or registered for via the Services, or the performance or non-performance of any Third Party in connection with the Services. Meliny is not an agent of any provider of Third-Party Activities.

17 - Mobile Services

While we strive to make our applications available on many platforms, we can't guarantee that our applications are compatible with your device (though please let Customer Support know if you have a question or problem; we want to help). If you use our applications, your standard data and messaging rates will apply, and the rules of the app store from which you are downloading will also apply.

17.1 Wireless Carrier and Device Considerations

To use or access our applications, you will need a compatible device. We cannot guarantee the applications will be compatible with, or available on, your device. We do not charge for use of some basic applications; however, you may need to pay fees to use certain premium applications or features. Further, your phone company’s normal messaging, data, and other rates and fees will still apply.

17.2 Text and Mobile Messaging Express Consents

By downloading or using our applications, you expressly agree we may communicate with you regarding transactions you have initiated on the Services or respond to your communications to us through the Services by SMS, MMS, text message, or other electronic means directed to your device and that certain information about your usage of the applications may be communicated to us automatically form your device. We will not send you direct messages of a marketing nature without your prior express written consent and you can opt out of receiving any marketing messages from us at any time.

17.3 Mobile Application License

We hereby grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use our applications downloaded directly from a legitimate marketplace, solely in object code format and solely for your personal use for lawful purposes. With respect to any open source or third-party code that may be incorporated in the applications, such open-source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.

Article 18 - Paid Services

If you choose to subscribe to any of our enhanced, paid services, these are the payment and billing terms that apply. Paid services and billing may auto-renew unless you cancel. You may cancel at any time.

18.1 Payment Terms

We offer certain premium versions of the Services (the “Premium Services”) for a fee. By signing up for and using the Premium Services, you agree to our Terms, and any additional terms and conditions provided here. You also agree to waive your 14-day right of withdrawal at the moment you subscribe to the Premium Services to the maximum extent permitted by applicable law, so that you are able to immediately access them.

The Premium Services provide you access to certain enhanced products, services, features and functionality (e.g., premium graphs and analysis, an ad-free browsing experience). By signing up for and using the Premium Services, including signing up for Free Trials of the Premium Services, you agree to pay any fees or other incurred charges that apply to the Premium Services (such as subscription fees).

When you sign up for the Premium Services, you must designate and provide information about your preferred payment method (“Payment Method”). This information must be complete and accurate, and you are responsible for keeping it up to date. You expressly authorize us to collect via automatic debit or ACH from your Payment Method the appropriate fees charged for the Premium Services and for any other purchases you elect to make via the Services.

You can choose to pay for the Premium Services on a monthly or annual basis. Unless otherwise stated, all fees due for the Premium Services are payable in advance and will be billed automatically to the Payment Method at the start of the monthly or annual Premium Service period, as applicable. Unless otherwise stated, Premium Services will auto-renew until you elect to cancel your access to Premium Services. All purchases of Premium Services are final and non-refundable, except at our sole discretion and in accordance with the rules governing each Premium Service.

18.3 Fee Changes

To the maximum extent permitted by applicable laws, we may change our prices for Premium Services at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Premium Service and/or by sending you an email notification. If you do not wish to pay the new prices, you can cancel the applicable Premium Service prior to the change going into effect.

18.4 Discount, Coupon or Gift Codes

If you have received a discount, coupon or gift code to a Premium Service, the following terms and conditions apply in addition to the terms and conditions of the specific code. To redeem a discount or coupon code, log in to the applicable Service and enter the applicable code to take advantage of the relevant promotion. All discounts, gift and coupon codes can only be applied when subscribing to Premium Services, and to accounts not already subscribed to Premium Services. Discount, coupon and gift codes cannot be combined with any other cash-off price, sales, promotion or coupon, and cannot be exchanged, refunded, replaced or redeemed for cash or payment of accounts. A payment method may be required to redeem a discount or coupon code. It is your own responsibility to use a discount, coupon or gift code before it expires, and expired codes cannot be refunded or extended. It is also your responsibility to terminate the Premium Service before the end of a free or discounted period if you do not want to continue with a Premium Service at the regular price. The terms and conditions of a specific discount, coupon or gift code may include additional restrictions on its use, including but not limited to the type of plan, duration of free or discounted Premium Service, coupon validity dates, and/or purchase quantities. Meliny reserves the right to cancel discounts and coupon promotions at any time.

Article 19 - Shopping and E-Commerce

Additional e-commerce terms and conditions may apply to Meliny Shopping. You can find these terms and conditions herein. We also aim to provide information about our refund, exchange, re-stocking, taxes, shipping, and related policies at or near the point of purchase. If you have questions related to Meliny Shopping, please contact our Team. Please review these policies prior to making purchases through Meliny Shopping.

19.1 Safety First

Meliny cares about your safety. You should consult with your healthcare provider(s) and consider the associated risks before using our Services in connection with any physical activity, wellness or fitness program, or any dietary program or guidance. By using our Services, you agree, represent and warrant that you have received consent from your physician to participate in wellness and fitness programs, workouts, exercises or any of the related activities made available to you in connection with the Services, and that you have consulted with your physician before making any dietary changes based upon information available through the Services. Everyone’s condition and abilities are different and participating in the activities promoted by our Services is at your own risk. If you choose to participate in these activities, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities. Activities promoted by the Services may pose risks even to those who are currently in good health.

You understand and agree that we will not carry out and are not responsible for any physical inspection, supervision, preparation, execution or conduct of any activities related to or accessed or discovered via the Services (e.g., featured, official or community created challenges; routes; friendly competitions or similar activities; any single or group training activities; any Third-Party Activities or other events or activities that utilize our Services).

You expressly agree that your athletic activities, which may generate the User-Generated Content you post or seek to post on or via the Services (e.g., running, walking, cycling, hiking) and certain Third-Party Activities carry certain inherent and significant risks of property damage, bodily injury, or death and that you voluntarily assume all known and unknown risks associated with these activities, even if caused in whole or part by the action, inaction, or negligence of Meliny or by the action, inaction, or negligence of others.

Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injuries or damages sustained from your physical activities or your use of, or inability to use, any Services or features of the Services, including any Content or activities you access or learn about through our Services (e.g., a Third-Party Activity such as a yoga class), even if caused in whole or part by the action, inaction or negligence of Meliny or others. To the maximum extent permitted by applicable law, you expressly agree we do not assume responsibility for any Third-Party Activity or any other race, contest, class, athletic activity or event that utilizes or is promoted by or accessed via the Services.

19.2 Disclaimer Regarding Accuracy and Reliance on Content

We make no representations or warranties as to the accuracy, reliability, completeness or timeliness of any Content available through the Services, and we make no commitment to update such Content.

In addition, User-Generated Content, including advice, statements, or other information, including, without limitation, food, nutrition, dietary guidance, exercise or training guidance, athletic activities, and exercise database entries, are not produced by Meliny, and should not be relied on without independent verification. User-Generated Content, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User-Generated Content originated. All information is provided “as is” without any representation, warranty or condition as to its accuracy or reliability.

Not all users who may identify themselves as professional trainers or licensed dieticians are licensed in all applicable jurisdictions. Meliny has no and assumes no obligation to verify that users who identify themselves as licensed trainers or dieticians are actually licensed. If you hold yourself out as a licensed trainer or dietician, you represent and warrant that you are actually licensed for the services you provide in the jurisdiction in which you offer your services. Users should also bear in mind that even if a user is a licensed trainer in one jurisdiction that does not mean the trainer user is licensed in the jurisdiction from which other users access the trainer user’s advice. Accordingly, relying on any advice provided by other users is at your own risk. To the extent permitted by applicable law, under no circumstances will Meliny be responsible or liable for any loss or damage resulting from your reliance on information or advice provided by any user of our Services.

19.3 Not Medical Advice

We aim to provide useful general information for our community, not professional medical advice. The Services are not medical devices, and the data provided by them is not intended to be utilized for medical purposes or to diagnose, treat, cure or prevent any disease, ailment or injury. To the maximum extent permitted by applicable law, you expressly agree we are not providing medical advice via the Services. All Content provided through the Services, whether provided by us or by other users or third parties (even if they are claiming to be a doctor!) is not intended to be and should not be used in place of (a) the advice of your physician or other medical professionals, (b) a visit, call or consultation with your physician or other medical professionals, or © information contained on or in any product packaging or label. To the extent permitted by applicable law, we are not responsible for any health problems that may result from training programs, dietary recommendations, consultations, products, or events you learn about through the Services. Should you have any health-related questions, please call or see your physician or other healthcare provider promptly. If you have an emergency, call your physician or your local emergency services immediately.

Your use of the Services does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between Meliny and you.

19.4 Success Stories Not Typical

Success stories posted by users or Meliny on our Services may not represent typical or even accurate results obtained from any particular fitness activity or diet. To the extent permitted by applicable law, Meliny has no and assumes no obligation or liability associated with the accuracy, reliability or effectiveness of any fitness activity or dietary recommendation contained in any user success stories.

19.5 Accuracy

The Services are intended to provide you with information to encourage you to support your wellness and fitness activities. Some of the Services are aimed at tracking your physical movements and sleep activity (“Activity Tracking Services”). These Activity Tracking Services rely on sensors and/or GPS functionality that track your movement or body at rest. The data and information provided by the Activity Tracking Services are intended to be a representation of your activity, but may not be completely accurate, including with respect to step, sleep, speed, distance, or calorie data. By using Activity Tracking Services, you acknowledge and agree that Meliny is not responsible or liable for any inaccuracy in such data.

If you are a resident of New Jersey:

Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by Meliny’s own fraud, recklessness, gross negligence or willful misconduct.

Article 20 Modifications to the Terms and Product-Specific Terms and Services

As Meliny grows and improves, we might have to make changes to these Terms or include additional terms that are specific to certain products.

20.1 Service Updates, Changes and Limitations

Our Services are constantly evolving. With the launch of new products, services, and features, we need the flexibility to make changes, impose limits, and occasionally suspend or terminate certain Services.

The Services change frequently, and their form and functionality may change without prior notice.

We may provide updates (including automatic updates) for certain Services as and when we see fit. This may include upgrades, modifications, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Further, you agree that the Terms (and any additional modifications of the same) will apply to any and all Updates to the Services. We may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content. In addition, we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any Service. We may also impose limits on certain Services or restrict your access to part or all of the Services without notice or liability.

20.2 Service Monitoring and Suspension

We reserve the right to refuse to provide the Services to anyone, and can monitor, terminate or suspend the Services at any time.

We reserve the right, but have no obligation, to monitor any accounts and/or activities conducted through or in any way related to the Services (including inviting a fellow user into a community or group), as well as any user’s use of or access to Personal Data, and profiles of other users.

We may also deactivate, terminate or suspend access to certain Services at any time: (1) if we, in our sole discretion, determine you are or have been in violation of these Terms or the spirit thereof (as highlighted in our Community Guidelines), (2) if we, in our sole discretion, determine you have created risk or possible legal exposure for Meliny, the general public, any third party, or any user of our Services, (3) in response to requests by law enforcement or other government agencies, (4) upon discontinuation or material modification of any Services, or (5) due to unexpected technical issues or problems. We will endeavor to notify you by email or the next time you attempt to access your account after any such deactivation, termination or suspension.

20.3 Security

We care about the security of our users. While we work hard to protect the security of your Personal Data, User-Generated Content, and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any actual or suspected breach or unauthorized access or use of your account.

20.4. Ownership and Use of Content

20.4.1 Definitions

Content is what shows up on your display when you use our Services. User-Generated Content is any Content that is created by you or other users, and MELINY Content is all other Content.

For purposes of these Terms, (i) “Content” means any form of information, data or creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, tools, text, ideas, communications, replies, “likes,” comments, software, scripts, executable files, graphics, maps, routes, geo-data, workouts and workout data, biometric data and data elements derived therefrom, training plans, sleep activity, annotations, nutrition information, recipes, interactive features, designs, copyrights, trademarks, service marks, branding, logos, and other similar assets, patents, sounds, applications and any intellectual property therein, any of which may be generated, provided, or otherwise made accessible on or through the Services; (ii) “User-Generated Content” means any Content that a user submits, transfers, or otherwise provides to or through the use of the Services; and (iii) “MELINY Content” means all Content that is not User-Generated Content.

20.4.2 Ownership

You own the Content that you create, and we own the Content that we create.

All MELINY Content and all copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services belong to Meliny and/or its partners or applicable third parties. Meliny and/or its partners or third parties retain ownership, responsibility for and/or other applicable rights in all MELINY Content. Except as expressly provided in the Terms, nothing grants you a right or license to use any MELINY Content, including any content owned or controlled by any of our partners or other third parties. You agree not to duplicate, publish, display, distribute, modify, or create derivative works from the material presented through the Services unless specifically authorized in writing by Meliny.

20.4.3 Our License to You

You are welcome to access and use the MELINY Content and Services. We work hard to provide a great experience for our users, so please respect our intellectual property rights and only use the MELINY Content and Services as intended. This includes not using any MELINY Content or Services for commercial purposes without our permission. We do have APIs and other tools you can use to help create your own apps and products. Contact us to find out more.

Subject to your compliance with these Terms, we grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Services and MELINYContent for your own personal, noncommercial purposes, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, grant a security interest in, transfer or otherwise commercially exploit any right in the MELINY Content or Services.

20.4.5 Acceptable Usage Guidelines

20.5 Your License to Us

When you post Content in connection with the Services, it belongs to you - however, you're giving us permission to use that Content in connection with our Services and make the Content available to others. We can edit or remove your Content from our Services at any time for any reason. Don't post any content that is not yours or that you do not have permission to post.

When you provide User-Generated Content to Meliny through the Services, you grant Melinyand our users a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform to the requirements of any networks, devices, services, or media through which the Services are available), commercialize, create derivative works of, and otherwise exploit such User-Generated Content in connection with any and all Services. You acknowledge and agree that: (a) we have the right to arrange the posting of User-Generated Content in any way we desire; (b) Meliny has no obligation to provide you with any credit when using your User-Generated Content, but if Meliny chooses to provide you with credit, the size and placement of the credit is at our sole discretion; and © you are not entitled to any compensation or other payment from us in connection with the use of your User-Generated Content.

The rights you grant in this license are for the limited purposes of allowing Meliny to operate and allow other users to use the Services in accordance with their functionality, improve the Services, and develop new Services. Notwithstanding the above, we will not make use of any of your User-Generated Content in a manner that is inconsistent with these privacy settings you establish within our Services.

We reserve the right to monitor, remove or modify User-Generated Content for any reason and at any time, including User-Generated Content we believe violates these Terms, the Community Guidelines, and/or our policies.

You agree you will respect the intellectual property rights of others. You represent and warrant you have all the necessary rights to grant Meliny the foregoing license for all User-Generated Content you submit in connection with the Services and will indemnify us for any breach of this representation and warranty.

20.6 Spreading the Word

If you share someone else's personal information with us, you must first get their permission.

We hope you enjoy using our Services and encourage you to share your enthusiasm for them with your friends. If you elect to use the features in our Services to tell a friend about the Services, we will ask you to provide your friend’s email address or social media profile, which we may then use to contact your friend about the Services. We may store the information you provide for a period of time, but we will not post this information publicly. You represent and warrant that you are authorized to provide any third-party contact information that you provide to us for referrals and will indemnify us for any breach of this representation and warranty.

20.7 Content Retention

Please keep in mind that when you make something publicly available on the Internet, it becomes practically impossible to take down all copies of it in the future.

Following termination of your account, or if you remove any User-Generated Content from the Services, we may retain your User-Generated Content for a commercially reasonable period of time for backup, archival, or audit purposes, or as otherwise required or permitted by law. Furthermore, Meliny and its users may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of your User-Generated Content that otherwise has been stored or shared through the Services. Accordingly, note that the above license to your User-Generated Content continues even if you stop using the Services. When you post something publicly, others may choose to comment on it, making your Content part of a social conversation.

20.8 User-Generated Content and Eligibility to Participate in Certain Sports Organizations

Things that happen online may have consequences in the real world.

Certain sports organizations have rules on amateurism and eligibility that could potentially be implicated if you post User-Generated Content within the Services, even if you believe it is noncommercial in nature. It is your responsibility to determine whether posting such content within the Services will affect your eligibility to participate in any sport under any applicable rules of any sports organization.

20.9 Your Feedback

We appreciate your feedback and can freely use your suggestions to make Meliny and users around the world better. Thank you and keep the ideas coming!

If you choose to submit comments, ideas or feedback, you should submit the idea through our wedbsite, and you agree that we are free to use the ideas you submit without any restriction or compensation to you. By accepting your submission, Meliny does not waive any rights to use similar or related feedback previously known to Meliny, developed by our employees, or obtained from sources other than you. You certify and represent that the information or feedback you submit to us through the Services is not confidential or proprietary information.

Article 21 - Updates to these Terms

Meliny reserves the right to modify these Terms by (i) posting revised Terms on and/or through the Services, and/or (ii) providing advance notice to you of material changes to the Terms, generally via email where practicable, and otherwise through the Services (such as through a notification on the home page of the Meliny websites or in our applications). Modifications will not apply retroactively unless required by law.

We may sometimes ask you to review and to explicitly agree to or reject a revised version of the Terms. In such cases, modifications will be effective at the time of your agreement to the modified version of the Terms. If you do not agree at that time, you are not permitted to use the Services. In cases where we do not ask for your explicit agreement to a modified version of the Terms, the modified version of the Terms will become effective as of the date specified in the Terms. Your choice to maintain an account, access or use the Services (regardless of whether you create an account with us) following that date constitutes your acceptance of the terms and conditions of the Terms as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Services.

 21.1 Product-Specific Terms

We may also require you to agree to additional terms, rules, policies, guidelines, or other conditions (collectively, “Product-Specific Terms” that are specific to certain Services (for example, the Commercial Tools). In such cases, you may be required to expressly consent to Product-Specific Terms. For instance, you might need to check a box or click on a button marked “I agree.” If any of the Product-Specific Terms are different than the Terms, the Product-Specific Terms will supplement, amend, or supersede the Terms, but only with respect to the subject matter of the Product-Specific Terms

Article 22 - No Warranties

EXCEPT WHERE PROHIBITED BY LAW, MELINY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW. THE SERVICES AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS BASIS. Without limiting the foregoing, you understand that, to the maximum extent permitted by applicable law, we make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, availability, or reliability of any of the Services or any Content. To the maximum extent permitted by applicable law, we do not warrant that (i) the Services will meet your requirements or provide specific results, (ii) the operation of the Services will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. Any oral or written advice provided by our agents or us does not and will not create any warranty. To the maximum extent permitted by applicable law, we also make no representations or warranties of any kind with respect to Content; User-Generated Content, in particular, is provided by and is solely the responsibility of the users providing that Content. No advice or information, whether oral or written, obtained from other users or through the Services, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.

Article 23 - Limitation of Liability

We are building the best Services we can for you but we can't promise they will be perfect. We're not liable for various things that could go wrong as a result of your use of the Services.

To the maximum extent permitted by applicable law, under no circumstances (including, without limitation, negligence) shall Meliny, its subsidiaries, partners or any wireless carriers be liable to you or any third party for (a) any indirect, incidental, special, reliance, exemplary, punitive, or consequential damages of any kind whatsoever; (b) loss of profits, revenue, data, use, goodwill, or other intangible losses; © damages relating to your access to, use of, or inability to access or use the Services; (d) damages relating to any conduct or content of any third party or user of the Services, including without limitation, defamatory, offensive or illegal conduct or content; and/or (e) damages in any manner relating to any Third-Party Content, Third-party Products or Third-Party Activities accessed via the Services. To the maximum extent permitted by applicable law, this limitation applies to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not Meliny has been informed of the possibility of such damage, and further where a remedy set forth herein is found to have failed its essential purpose. To the maximum extent permitted by applicable law, the total liability of Meliny, for any claim under these Terms, including for any implied warranties, is limited to the greater of one thousand dollars (us $1,000.00) or the amount you paid us to use the applicable Service(s) in the past twelve months.

In particular, to the extent permitted by applicable law, we are not liable for any claims arising out of (a) your use of the Services (including but not limited to your participation in any activities promoted by or accessed via the Services), (b) the use, disclosure, display, or maintenance of a user’s Personal Data, © any other interactions with us or any other users of the Services, even if we have been advised of the possibility of such damages, or (d) other Content, information, services or goods received through or advertised on the Services or received through any links provided with the Services.

To the extent permitted by applicable law, you acknowledge and agree that we offer the Services and set the Services’ prices in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms, that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.

If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “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.”

If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by MELINY’s own fraud, recklessness, gross negligence or willful misconduct.

Article 24. Indemnification

If you are a resident of the United States or any location other than France or Germany: To the maximum extent permitted by applicable law, you agree to indemnify and hold Meliny, its subsidiaries, suppliers and other partners harmless from any claim or demand, including reasonable accounting and attorneys’ fees, made by any third party due to or arising out of (a) the User-Generated Content you access or share through the Services; (b) your use of the Services, © your athletic activities in connection with the Services (including, but not limited to, athletic activities in connection with any contests, races, group activities, Third-Party Activities or other events that we may sponsor, organize, participate in, or where the Services are employed), (d) your connection to the Services, (e) your violation of these Terms, (f) your use or misuse of any user’s Personal Data, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Services to meet another user in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.

If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms imposes an obligation for you to indemnify us from claims arising out of MELINY’s own fraud, recklessness, gross negligence or willful misconduct.

Article 25. Governing Law

If you are a resident of the United States location: These Terms shall be governed by and construed in accordance with the laws of the State of New York and controlling U.S. federal law as applicable, without regard to its conflict of law principles.

25.1 Disputes and Arbitration, Jurisdiction and Venue

To the maximum extent permitted by applicable law, you and Meliny agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Services under the rules of the American Arbitration Association. Please visit www.adr.org for more information about arbitration.

Any arbitration between you and us, to the extent necessary, will be conducted in New York, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum.

The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:

Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.

You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your choice to maintain an account, access or use the Services:

If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in New York,and you and we hereby submit to the personal jurisdiction and venue of these courts.

This agreement to arbitrate will not preclude you or Meliny from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Meliny from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Meliny’s intellectual property rights.

In the event of any litigation or arbitration arising from or related to these Terms, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation or arbitration.