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MODERN MOOD, LLC
TERMS AND CONDITIONS
Effective Date May 1, 2020
The terms "you", "your", and "yours" refer to the end user customer/purchaser utilizing our website (“Site”). The terms "Modern Mood", "we", "us", and "our" refer to Modern Mood, LLC, and its affiliates, and subsidiaries. We refer to the manufacturing entities that make the products that are sold through our Site as “Merchants”. We reserve the right to change the nature of this relationship at any time and to revise these Terms and Conditions (“Terms”) from time to time in our sole discretion. If you violate the Terms of this Agreement you may have your access canceled and you may be permanently banned from using the Site and any interactive services. You should periodically check these Terms for any revisions. By using the Site after we post changes to these Terms, you agree to accept those changes, whether you reviewed them.
Entering our Site will constitute your acceptance of these Terms. If you do not understand or agree with any of the Terms contained herein, please do not enter the Site.
The Terms set forth herein and the rules and restrictions that govern your use of our Site, products, services, and applications (the "Services"). Please read the Terms carefully, and if you have any questions, comments, or concerns regarding these Terms or the Services, please contact us in writing at CS@ModernMood.com, or to the following address:
Modern Mood, LLC
491 N Bluff Street 204B
St. George, Utah, 84790
1.1 Merchants manufacture the products and sell their products through our Site to end users. When you purchase an item, the contract for sale is solely between you and the Merchant. We will ship the item to you, as the end user. That means that when you purchase an item, you are making a purchase from the Merchant who listed the item, and the Merchant is responsible for fulfilling your order and we ship the items.
2.1 Modern Mood operates the Site that allows Merchants and users to share information and complete purchases. Merchants are responsible for their items, item listings (including any original or strike-through prices) and providing the product for fulfillment of your order. Merchants may be in your country or region or elsewhere. If they are located elsewhere, this may influence taxes, customs, or the applicability of consumer protection rules.
2.2 Although we are not a party to the contract formed between you and a Merchant when you make a purchase, we may assist with payment processing, shipment, returns, refunds, and other customer service. Modern Mood does not guarantee (i) the existence, quality, safety, suitability, or legality of Merchant items or item listings; (ii) the truth or accuracy of any item listing, description or other content provided by Merchants; (iii) the truth or accuracy of ratings, reviews, or other User Submissions; or (iv) the performance or conduct of Merchants or other third parties. Except if we clearly indicate otherwise, Modern Mood does not endorse any Merchant, store, item, or item listing. Please read labels, warnings and directions provided with a purchased item before using it and consider doing your own research prior to making a purchase.
2.3 You should make whatever investigation you feel necessary or appropriate before making a purchase.
3.1 In order to use the Services, you must be eighteen (18) years old or older and be of sound mind and legal age to form a binding contract (or if not, you have received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf).
3.2 You are not permitted to use the Services if: (a) You cannot enter a binding contract with Modern Mood; (b) You are not part of the 48 contiguous states; or (c) you have previously been banned from using any of our Services, unless we have reversed that ban, in our sole discretion.
3.3 You may be required to create an account and select a password and username. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your user name a name that you do not have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
4.1 You agree to use the Services for your own internal and personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with these Terms and all laws that apply to you. If your use of the Services (including a purchase of any items on the Services) is prohibited by any applicable laws, then you are not authorized to use the Services. We are not responsible if you use the Services in a way that violates any law, rule, or regulation.
4.2 You will not share your account or password with anyone, and you must protect the security of your account and your password. You will notify Modern Mood immediately of any unauthorized use of your password or any other breach of the security of your account. You are responsible for any activity associated with your account.
4.3 You may not create multiple accounts and you must not let others use your account.
4.4 When accessing or using the Services, you agree to:
4.6 When accessing or using the Services, you agree not to:
In addition to any other remedies available to us, including without limitation monetary and nonmonetary damages, a violation of any of the foregoing is grounds for: cancellation of one or more purchases and/or suspension or termination of your right to access or use the Services.
5.2 Your purchases are fulfilled by Merchants and shipped by us. To fulfill and ship your purchases, we and the Merchants need information about the purchaser, such as mailing address. Merchants may be in your country or region or elsewhere. You acknowledge that when you make a purchase, Modern Mood treats it as a request (from you) to share your information, including name, street address and phone number, with the relevant Merchant to, for example facilitate shipping, and that such sharing may cause a transfer of personal data from one region to another.
6.1 Modern Mood may communicate with you using email or autodialed or prerecorded calls and text messages, at any telephone number that you provide us, to: (i) notify you regarding your account, fulfillment and shipment; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
6.2 If you would like to receive marketing via mobile texts and alerts, you may sign up to do so. By signing up, you provide your consent to receive recurring autodialed marketing texts or other mobile messages from or on behalf of us at the mobile number you have provided. You understand that consent is not a condition of purchase. Message and data rates may apply. If you would like to be removed from the Modern Mood marketing text list, you can follow the instructions provided in those messages or reply STOP to any Modern Mood SMS/text. If you have any questions, you may reply HELP to Modern Mood SMS/text alerts or contact customer care at CS@ModernMood.com.
6.3 Modern Mood may route these communications through a third-party service provider, and we or the service provider may record telephone conversations you have with Modern Mood or its agents for quality control and training purposes, or for our own protection.
7.1 Anything you post, upload, share, store, or otherwise provide through the Services is a "User Submission." User Submissions may include suggestions, comments, ideas, improvements, or other feedback or materials, and may be viewable by other users. To display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions.
7.2 For all User Submissions, you hereby grant Modern Mood a royalty-free, perpetual, non-exclusive, transferable, sublicensable, worldwide license to use, store, display, reproduce, save, modify (e.g. for technical purposes, such as making sure your submission is viewable on mobile devise as well as a computer), create derivative works, perform, distribute, translate or otherwise act with respect to such User Submissions as we determine is necessary to operate, market and advertise the Services, including to present, display or perform such User Submission in accordance with your preferences.
7.3 If you choose to submit User Submissions, Modern Mood will consider such Submissions to be non-confidential and non-proprietary. Modern Mood shall have no obligations concerning the User Submissions, and Modern Mood will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit the User Submissions in any manner, without any restriction or compensation to you.
8.1 Ratings and reviews and photos, videos or other content about items and stores ("Feedback") generated by users on our Services are User Submissions that are not endorsed by Modern Mood and do not represent the views of Modern Mood. Modern Mood does not assume liability for Feedback or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Merchant, product, or service; (ii) you will not provide a rating or review for any Merchant, product, or service with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) you will prominently indicate if your review was sponsored or paid for in any way; and (iv) your review will comply with these Terms. We reserve the right to exclude such Feedback for any reason or no reason, without notice to you. For example, we may exclude Feedback if we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews.
9.1 The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, Feedback (all of the foregoing, the "Content") may be protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you: (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's rights (including Modern Mood's).
9.2 You understand that Modern Mood owns or licenses the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services, except as expressly provided in this section 9.
9.3 Subject to your compliance with these Terms and applicable policies, rules or guidelines, and your payment of any applicable fees, Modern Mood or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Services. All rights not expressly granted to you in these Terms or any policies or guidelines are reserved and retained by Modern Mood or its licensors, suppliers, publishers, rightsholders, or other content providers. The licenses granted by Modern Mood terminate if you do not comply with these Terms or the applicable policies, rules, or guidelines.
9.4 We reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers.
10.1 Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such information or Content originated. You access all such information and Content at your own risk, and we are not liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take because of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We cannot guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
10.2 You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the way you contribute it.
10.4 Modern Mood has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Modern Mood will not and cannot monitor, verify, censor, or edit the content of any third-party site or service. By using the Services, you release and hold us harmless from all liability arising from your use of any third-party website or service.
10.5 Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties. You agree that Modern Mood shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
10.6 If there is a dispute between participants on this site, or between users and any third party, you agree that Modern Mood is under no obligation to become involved. If you have a dispute with one or more other users, including a Merchant, you release Modern Mood, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE WHICH MAY PROVIDE PROTECTIONS WHEREBY A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. ANY SUCH RIGHTS ARE HEREBY WAIVED.
11.1 We're always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all the Services. We will try to give you notice when we make a material change to the Services that would adversely affect you, but this isn't always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
12.1 It is free to access and browse the sites and other aspects of the Services. However, you may choose to purchase items through the Services, and you alone will be responsible for paying the purchase price of any items you buy, in addition to any taxes and costs. Modern Mood may limit or cancel quantities of items purchased, and it reserves the right to refuse any order. In the event Modern Mood needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. Prices are subject to change at any time. Due to separate and applicable tax jurisdictions, your purchases may be subject to specific sales, use, customs or value-added taxes, and the shipping time and associated cost may increase accordingly. As tax rules evolve, Modern Mood may calculate and collect taxes applicable to some purchases.
12.2 Modern Mood reserves the right to require payment of fees for certain or all Services, in addition to the fees charged for the purchase of items. You shall pay all such fees, as described on the website in connection with such Services selected by you. Modern Mood reserves the right to change prices and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Services. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.
13.1 You are responsible for reading the full item listing before purchasing an item. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s), as well as all charges and applicable taxes. When a transaction is made pursuant to a shipping contract, the risk of loss and title for products pass to you upon delivery of the products to the carrier.
13.2 You must timely pay all fees or amounts associated with your use of the Services, including for any purchases. YOUR PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN APPLICABLE POLICIES.
13.3 In order to make purchases, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. You must promptly update your account with any changes related to your payment method. BY PROVIDING INFORMATION FOR A PAYMENT METHOD, YOU AUTHORIZE MODERN MOOD OR ITS AGENTS TO CHARGE THE PAYMENT METHOD FOR: (A) AMOUNTS DUE FOR PURCHASED ITEMS; (B) ANY AND ALL APPLICABLE TAXES; AND (C) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF THE SERVICES.
13.4 Each final price is determined by or based on a price supplied by the Merchant offering an item for sale. Merchants provide the other information in the item listings, including any reference or strike-through prices. Merchants are obligated to provide accurate information, but we have no way to guarantee the truth or accuracy of information in item listings. Modern Mood does not represent, warrant, or guarantee that the Merchant offered or sold the item at the strike-through price. You should not rely on the strike-through price in connection with making any decision to purchase. If comparison price is an important factor in your purchasing decision, you should do your own research and comparisons before making a purchase.
13.5 Pricing or availability errors may occur from time to time. Modern Mood reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice. Pricing for products may be different in different platforms that we operate and vary based on other factors, including location, time, purchase patterns.
14.1 If you have a problem with an order or purchase, please contact us at CS@ModernMood.com. You agree that: (i) Modern Mood may, in accordance with this Section, and in their sole discretion, issue an exchange or refund to resolve problems with your order in limited circumstances as more fully set forth below; and (ii) if you wish to pursue any other remedy, you must seek that remedy directly from the applicable Merchant. If you accept an exchange or refund, your ability to seek another remedy from the applicable Merchant may be affected.
14.2 Except as described herein, Modern Mood cannot refund, reimburse, cover, or otherwise be responsible for any fees, including without limitation those not paid to Modern Mood, such as taxes as well as any return shipping costs you may incur in the refund process.
14.3 Except as expressly provided herein, Modern Mood offers limited exchanges, returns and refunds on any kind of products offered for sale from our website.
14.4 Please review the details of each product you intend to purchase to ensure that the item meets your specific size, needs, and expectations before making the purchase.
14.5 You understand and agree that you are entitled to an exchange, return or refund on any product when the product is damaged, defective, does not match the listing description, or the wrong item is shipped as more fully set forth below.
14.6 All items sold are sold in as is, where is condition, as shown without warranty expressed or implied unless otherwise expressly set forth in writing.
14.7 Products sold on our website are constructed of natural wood and some are covered with fabric providing each customer with a unique product. Each item constructed from wood will have its own unique image in grain design, knots, and color that is individual and specific with no identical piece (“Unique Designs”). Therefore, no wood product will be identical and the specific piece of furniture you view on our website may be different in grain design, knots, and color from the product delivered to you. In addition, fabrics may have small imperfections and slightly different colors that might appear to be defects. These are not to be considered defects and are features of the manufacturing process.
15.1 If the product arrives damaged or is defective, it may qualify for a full refund + 10% off your replacement purchase*. If upon receiving the product you discover that it (1) has been damaged during shipping or (2) is defective then you must, within forty-eight (48) hours of delivery, notify Modern Mood by sending a written description of the problem, basis for your requested return and photographic evidence of any damaged or defective product with its original packaging. Modern Mood will work to resolve the issue within forty-eight (48) hours. Your written description of the problem and supporting photographic evidence must be submitted at the same time as return request. Modern Mood will determine, in its sole discretion, whether the item qualifies for a refund and if the item needs to be returned. Do not return an item until your written request has been approved by Modern Mood in writing.
*In order to qualify for 10% off your replacement order, your original order must have been purchased without a coupon.
Customer feedback is very important to us. We are always looking for ways to serve you better. We want you to become a lifelong shopper with Modern Mood. Please contact us with any questions you have. We are here to serve you.
If you would like to contact us by phone, email or mail, please use the following contact information:
Modern Mood, LLC
491 N Bluff St 204b
St. George, Utah 84790
16.1 For information regarding your shipping and delivery options, click here.
16.2 You can view the estimated delivery dates for products by going to your account or checking your email confirmation.
16.3 For up-to-date order status, click on the My Account page link in the My Orders section of the Welcome page of My Account. We'll send you a shipment confirmation email with tracking information as soon as your items leave the warehouse.
16.4 We want to save you time, so we offer you the ability to send products to more than one address within one order by shipping to multiple addresses.
It is easy to send your order to multiple addresses. For each item you add to your Shopping Cart you can select a recipient. You can also change a recipient during Checkout. Simply enter an address for each recipient or select an address from your Address Book.
You can even change the shipping address of an item after your order has been placed, by logging into My Account. To learn how to change a shipping address of an item or order, please see “Change Shipping Address”. (Please note that unfortunately, we will be unable to change the address for any items that have already shipped out of the warehouse.)
17.1 You are free to stop using the Services at any time. Any unpaid amounts you owe Modern Mood or Merchants for items purchased will remain due. Modern Mood is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Modern Mood has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Even after your right to use the Services is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to Modern Mood or Merchants for items purchased will remain due.
17.2 Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
17.3 Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding mitigation, litigation and class action waiver.
18.1 We're constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we make any material changes, we will bring it to your attention by placing a notice on the Services, by sending you an email, or by some other means. If you do not agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
18.2 Except for changes by us as described herein, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
19.1 NEITHER MODERN MOOD NOR ITS LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, INTELLECTUAL PROPERTY COMPLIANCE, OR LEGALITY OF PRODUCTS ACCESSED THROUGH THE SERVICES. WE (AND OUR LICENSORS AND SUPPLIERS) MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
19.2 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES, PRODUCTS OFFERED AND PURCHASED ON THE SERVICES, OR OTHER CONTENT ARE MADE AVAILABLE TO YOU IS ON AN "AS-IS" AND "AS-AVAILABLE" BASIS, WITHOUT WARRANTIES OR ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MODERN MOOD EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19.3 YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MODERN MOOD IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
19.4 IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
19.5 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
20.1 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MODERN MOOD (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR (B) YOUR USE OF THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY INABILITY TO ACCESS OR USE OR THE PURCHASE AND USE OF ITEMS OFFERED FOR SALE WITHIN THE SERVICES, EVEN IF MODERN MOOD, ITS SUPPLIERS, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
20.2 THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
20.3 YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT MODERN MOOD SHALL NOT BE LIABLE FOR ANY CONDUCT OF ANY MERCHANT OR USER OF THE SERVICES.
20.4 UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT MODERN MOOD IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO MODERN MOOD IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF MODERN MOOD FOR DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY MODERN MOOD'S GROSS NEGLIGENCE.
20.5 THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MODERN MOOD AND YOU.
21.1 To the fullest extent allowed by applicable law, you agree to indemnify and hold Modern Mood, its affiliates, officers, agents, employees, partners and attorneys harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any third party claims relating to (a) your use of the Services, including without limitation, User Submissions or any actions taken by a third party using your account), (b) your violation of these Terms, (c) your violation of any rights of another party, including without limitation any copyright, property, or privacy right or any third party agreement; or (d) your violation of any applicable laws, rules or regulations. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
21.2 Modern Mood reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Modern Mood in asserting any available defenses. This provision does not require you to indemnify Modern Mood for any unconscionable commercial practice by Modern Mood or for Modern Mood's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms, or your access to the Services, including the purchase of any items on the Services.
22.1 Electronic Communications
You agree to receive communications from Modern Mood electronically, such as emails, texts, mobile push notices, or notices and message on the Services, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Modern Mood provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Modern Mood's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
22.3 Force Majeure
Modern Mood shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
22.4 Choice of Law
These Terms and any dispute of any sort that might arise between you and Modern Mood will be interpreted in accordance with the law of the State of Utah and the United States of America, without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
22.5 Exclusive Venue
Any claim or dispute between you and Modern Mood that arises out of or is related to the Services shall be decided exclusively by a court of competent jurisdiction located in the Third District Court in Salt Lake County, Utah, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non convenience with respect to venue and jurisdiction in the state, district, and federal courts of Salt Lake County, Utah.
22.6 Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Where Modern Mood requires that you provide an email address, you are responsible for providing Modern Mood with your most current email address. If the last e-mail address you provided to Modern Mood is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Modern Mood's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Modern Mood at the following address: Modern Mood LLC, 455 West 200 North, Salt Lake City, Utah 84103. Such notice shall be deemed given when received by Modern Mood by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
22.8 Entire Agreement
These Terms and all policies posted through our Services set forth the entire understanding and agreement between you and Modern Mood and supersede all prior understandings and agreements of the parties. These Terms shall not be modified by any of: (i) course of performance between the parties; (ii) course of conduct or dealing between the parties; or (iii) applicable trade practice.
Our failure to respond to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
You will be responsible for paying, withholding, filing, and reporting all taxes, and other governmental assessments associated with your activity in connection with the Services, provided that the Modern Mood may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Modern Mood, and you do not have any authority of any kind to bind Modern Mood in any respect whatsoever. You and Modern Mood agree there are no third-party beneficiaries intended under these Terms.
PLEASE READ THE FOLLOWING MEDIATION AGREEMENT IN THIS SECTION ("MEDIATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO FIRST MEDIATE DISPUTES WITH MODERN MOOD.
YOU AND MODERN MOOD AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION USE OF THE SITE, ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH THE SITE OR MERCHANT, THESE TERMS, OR CONTENT (A "DISPUTE" AS DEFINED BELOW) SHALL FIRST BE MEDIATED.
"Disputes" shall include, but are not limited to, any claims or controversies between you and Modern Mood against each other related in any way to or arising out of in any way from the Service, the Content, User Submission (Public, Personal, and/or Limited Audience), including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and Modern Mood, even if the claim arises after you or Modern Mood has terminated use of Services or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that Modern Mood brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and Modern Mood, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with Modern Mood; (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. Disputes does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property, which shall not be subject to mediation or the notice and good faith negotiation requirement described below.
23.2 Mediation Process and Procedure
23.2.1 Except as provided herein, if we cannot resolve a Dispute informally, any Dispute will be mediated in Salt Lake County, Utah. Modern Mood and you further agree to submit to the personal jurisdiction of any state, district or federal court in Salt Lake County, Utah, and to stay proceedings pending mediation.
23.2.2 If a dispute cannot be resolved through mediation, then the parties will resolve their dispute in the Third District Court in Salt Lake County, Utah.
23.2.3 Each party shall be responsible for their own attorney fees and expenses relating to the mediation except for the costs of the mediator, which shall be split by the parties. The prevailing party in litigation shall be entitled to all costs incurred in the litigation including, without limitation, court costs, attorney's fees, and expert witness costs.
23.3 Waiver of Jury Trial
YOU AND MODERN MOOD HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT BY A JURY TRIAL. You and Modern Mood are instead electing that all covered claims and disputes shall be resolved by a judge, unless resolved by mediation.
23.4 Parents, Subsidiaries, Affiliates
This Mediation Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Modern Mood, or any employee, officer, director, or investor of Modern Mood, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Services, any person's access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services.
23.5 Changes to This Section
23.5.1 Modern Mood will provide thirty (30) days' notice of any changes to this section by posting on the websites, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the applicable website or sent to you.
23.5.2 Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the sections entitled "Mediation" and "Class Waiver" and the court shall apply the first Mediation and Class Action Waiver sections in existence after you began using the Services.
Subject to the section title "Waiver of Class or Consolidated Actions," if any part or parts of this Mediation Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Mediation Agreement shall continue in full force and effect.
23.7 Survival of Agreement
This Mediation Agreement will survive the termination or expiration of these Terms or your relationship with Modern Mood.
23.8 WAIVER OF CLASS OR CONSOLIDATED ACTIONS PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
23.8.1 Modern Mood and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Modern Mood and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
23.8.2 The court cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And the court's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Modern Mood users, and cannot be used to decide other disputes with other users.
23.8.3 If any court determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that litigation can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies must be litigated in the Third District Court in Salt Lake County, Utah.
23.8.4 If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
23.8.5 This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Modern Mood, or any employee, officer, director, or investor of Modern Mood, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
23.8.6 This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Services.
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