TERMS OF SERVICE
LAST UPDATED: March 26th, 2019
Users of our app and our site must be 18 or above. If you are under the age of 18 please stop using our Site and Service immediately.
When creating a Dearest Account, you will be asked to designate a preferred payment method. Dearest does not collect or retain payment card information. Instead, our payment processing partner— Stripe/PayPal —handles payments on our behalf.
END USER LICENSE AGREEMENT
The use of the Dearest App is governed by the following end user license agreement. By downloading and using the App, you acknowledge that this end user license agreement is between you and Dearest, not Apple, and that Dearest, not Apple, is solely responsible for the App.
Modification: Dearest reserves the right, at any time, to modify, suspend, or discontinue the Dearest Services or the App or any part thereof with or without notice. In the future we may offer additional services, features, functionalities and in-app purchases. You agree that Dearest will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Dearest Services or the App or any part thereof.
Ownership: The App provided to you is licensed to you and not sold. Dearest (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Dearest Services and the App. These Terms of Service are not a sale and they do not convey to you any rights of ownership in or related to the App. The Dearest name, logo, and the product names associated with the Dearest Service belong to Dearest Ltd (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Dearest (and its licensors, where applicable) reserve all rights not granted in this Agreement.
Certain features of the Dearest App or Site allow you to post, submit, publish, share, store, or manage (a) ideas, opinions, recommendations, data and information, including Information and (b) literary, artistic, musical, or other content, such as photos and videos (both “Content”). By posting or publishing Content, you represent and warrant to us that you have all necessary rights to distribute Content to us, either because you are the author and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the Content. You further represent and warrant that none of the Content you post or publish contains financial, privileged, confidential, personally identifiable or personal information of any kind whatsoever. You hereby grant to Dearest and our authorized personnel a worldwide, royalty-free, fully-paid, non-exclusive, transferable (in connection with an assignment of the Agreement), sublicensable (as necessary to perform the Services) license to copy, publicly perform, publicly display, publish, distribute, create derivative works of, and otherwise exploit information and Content as we in our sole and absolute discretion deem appropriate to perform and to promote (subject to your account settings) the Dearest Service, App or Site and in accordance with these Terms of Service. This license ends when you disable the Content or your account, unless Content has been shared with others and they have not deleted it.
You further acknowledge and agree that we will own all right, title, and interest in and to any materials, content, or other works of authorship created by us or on our behalf and used in connection with the Dearest Service, App or Site. We acknowledge and agree that, as between you and Dearest , you will own all right, title, and interest in and to Content you provide.
THIRD PARTY SERVICES AND CONTENT
USE OF DEAREST SERVICES, APP AND SITE
You are solely responsible for your use of the Services, App or Site, and for any use of Dearest, Dearest Services, App or Site made using your account. You agree not to access, copy, or otherwise use Dearest Services, the App or the Site, including our intellectual property and trademarks, except as authorized by these Terms of Service or as otherwise authorized in writing by Dearest. Without limiting the generality of the foregoing:
You will not copy, distribute or disclose any part of the App, Site or any Service in any medium, including without limitation by any automated or non-automated “scraping”;
You will not use the App, Site or any Service to defraud or attempt to defraud Dearest, its partners and service providers, or any other party in connection with your use of the App, Site, or the Service;
You will not use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the App, Site or any Service in a manner that sends more request messages to Dearest servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Dearest grants the operators of public search engines revocable permission to use spiders to copy materials from the publicly available searchable indices of the materials, not caches or archives of such materials);
You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the App, Site, or any Service;
You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
You will not upload invalid data, viruses, worms or other software agents through the App, Site, or any Service;
You will not collect or harvest any personally identifiable information, including account names, from the App, Site, or any Service;
You will not access the App, Site or any Service through any technology or means other than those provided or authorized by Dearest;
You agree not to stalk, harass, bully or harm another individual who uses our App, Site or any Service;
You agree not to impersonate any person or entity or misrepresent your affiliation with a person or entity;
You agree to use our App, Site and any Service only in a safe manner and in compliance with all laws, you explicitly agree that you will not use the App, Site, or any Service for any criminal communications or for transmitting any child pornography;
You agree that you will not hold Dearest responsible for your use of our App, Site or any Service;
You agree not to violate any requirements, procedures, policies or regulations of networks connected to Dearest;
You agree not to interfere with or disrupt the App, Site, or any Service;
You agree not to hack, spam or phish us or other users;
You agree to provide truthful and accurate Content;
You agree to not violate any law or regulation and you are responsible for such violations;
You will not use our App, Site or any Service to post any false, misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, inflammatory, fraudulent Content;
You agree not to cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of our Site, including the de-indexing or de-caching of any portion of our Site from a thirty party’s website, such as by requesting its removal from a search engine; and you will not upload any Content to our Site that includes any third party intellectual property unless you have permission from the owner to use it in the specific manner that you used it.
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our App, Site, or Services may at our discretion be terminated or suspended.
PAYMENTS AND REFUNDS
If you order our products or services using our site, please see our terms of sale [http://weardearest.com/terms] for additional details on payment terms and our warranty policy.
SOFTWARE AND SITE AVAILABILITY
We do not guarantee that the App, Site or Services will always be available, work, or be accessible at any particular time. Only users who are eligible to use our App, Site or Services may do so. We reserve the right to terminate access for anyone. We cannot guarantee that the App, Site or Services will work as advertised, or that it will give you the desired results.
You agree that you are responsible for all taxes and fees associated with your use of the App, Site and any Service. Although we may deduct nexus taxes or other taxes, you agree that if we do not, you will pay any associated taxes, levies, or fees.
COMPLIANCE WITH ALL LAWS AND REGULATIONS
Dearest is not responsible for your violation of any laws while using our App, Site and Services. Users must comply with all local, state, or federal laws regarding your use of our App, Site and Services. Our App, Site and Services are void where prohibited.
INTELLECTUAL PROPERTY RIGHTS
The design of the App, Site and Services, along with Dearest created text, templates, scripts, graphics, interactive features and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Dearest , subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Dearest reserves all rights not expressly granted in and to the App, Site and Services. You agree to not engage in the use, copying, or distribution anything contained within the App, Site or Services unless we have given express written permission.
REPRESENTATIONS AND WARRANTIES
OUR APP, SITE AND/OR SERVICES ARE OFFERED “AS-IS”, INCLUDING ANY ERRORS, BUGS OR OTHER TECHNICAL ISSUES. YOU AGREE THAT WHILE USING OUR APP, SITE OR SERVICE, YOUR RESULTS MAY VARY AND YOU MAY NOT ACHIEVE ANY DESIRED RESULTS. WE EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED. OUR APP, SITE OR SERVICES MAY NOT BE FIT FOR A PARTICULAR PURPOSE AND MAY NOT WORK OR BE APPLICABLE WHERE YOU RESIDE. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE REASONABLE SKILL AND CARE INVESTED IN OUR SERVICE, SATISFACTORY QUALITY OF OUR APP, SITE OR SERVICES, MERCHANTABILITY OF OUR APP, SITE OR SERVICES OR THAT OUR APP, SITE OR SERVICES ARE NON-INFRINGING. FURTHERMORE, WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APP, SITE OR SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, THAT THE APP, SITE OR SERVICES WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION, THAT ANY DEFECTS OR ERRORS IN THE APP, SITE OR SERVICES WILL BE CORRECTED, OR THAT THE APP, SITE OR SERVICES ARE COMPATIBLE WITH ANY PARTICULAR PLATFORM. DEAREST IS NOT OBLIGATED TO PROVIDE YOU ACCESS TO OUR APP, SITE AND SERVICES. IN THE EVENT OF ANY PROBLEM WITH THE SITE OR SERVICE, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE APP, SITE OR SERVICE. LIMITATION OF LIABILITY
IN NO EVENT SHALL DEAREST ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM (I) YOUR USE OR INABILITY TO USE THE APP, SITE OR SERVICES OR ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR APP, SITE OR SERVICES, (III) ANY INTERRUPTION, MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR APP, SITE OR SERVICES TO YOU, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY, (V) ANY FAILURE OF ANY THIRD PARTY INFORMATION LISTED ON OR INCLUDED IN OUR APP, SITE AND SERVICES, INCLUDING ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL OR (VI) ANY ERRORS OR OMISSIONS IN OUR APP, SITE OR SERVICES FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF OUR APP, SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE DEAREST IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION
FOR JURISDICTIONS THAT DO NOT ALLOW US TO LIMIT OUR LIABILITY: NOTWITHSTANDING ANY PROVISION OF THESE TERMS, IF YOUR JURISDICTION HAS PROVISIONS SPECIFIC TO WAIVER OR LIABILITY THAT CONFLICT WITH THE ABOVE THEN OUR LIABILITY IS LIMITED TO THE SMALLEST EXTENT POSSIBLE BY LAW. SPECIFICALLY, IN THOSE JURISDICTIONS NOT ALLOWED, WE DO NOT DISCLAIM LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ANY OF ITS OFFICERS, EMPLOYEES OR AGENTS; OR (B) FRAUDULENT MISREPRESENTATION; OR (C) ANY LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE EITHER NOW OR IN THE FUTURE.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. YOUR ABILITY TO USE OUR SOFTWARE AND SERVICE IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. YOU AGREE OUR TOTAL LIABILITY TO YOU IS NOT MORE THAN $100 U.S. DOLLARS OR THE TOTAL AMOUNT YOU SPENT WHILE USING OUR SITE, SOFTWARE, AND SERVICE WITHIN THE LAST SIX MONTHS, WHICHEVER IS GREATER.
You agree to defend, indemnify and hold harmless Dearest, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
your use of and access to the Dearest App, Site and/or Services;
your violation of any term of these Terms of Service;
your violation of any third party right, including without limitation any copyright, property, or privacy right; or
any claim that any of your Content caused damage to a third party.
This defense and indemnification obligation will survive this Agreement and your use of the Dearest App, Site, or Services. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
Dearest and its App, Site and Services may only be used by persons 18 years and older. If you are under 18 please stop using our App, Site and Services, and do not submit any information to us.
CHOICE OF LAW
All matters relating to the App, Site or Services, and these Terms of Service and any dispute or claim arising under or relating to the App, Site, Services or these Terms of Service, shall be governed by and construed in accordance with the internal laws of the state of Massachusetts, U.S.A. without giving effect to any choice of law provision of rule (whether of the state of New York or any other jurisdiction.)
FORUM OF DISPUTE
You agree that Dearest is not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Dearest shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
TERMINATION OF SERVICE
We may terminate or suspend your Dearest Account, or our App, Site, and/or Service without notice, though we will strive to provide a timely explanation in most cases. Please be aware that if we terminate service, you may be entitled to a refund if applicable. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified, make an announcement on our homepage or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our App, Site and Services.
The communications between you and Dearest use electronic means, whether you use our App, or visit the Site, or send Dearest e-mails, social media, or other messages, or whether Dearest posts notices on the App, Site, or Service or communications with you via e-mail, or social media. For contractual purposes, you (1) consent to receive communications from Dearest in an electronic form; (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Dearest provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
CALIFORNIA USERS AND RESIDENTS
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Dearest must be addressed to our agent for notice and sent via certified mail to: 1 Financial Center Fl 40, Boston, MA 02111. Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.