Terms and Conditions
Welcome to the Marleylilly website, operated by The Marley Lilly LLC ("Marleylilly," "we," or "our") and located at https://kids.marleylilly.com (the "Site"). The following terms and conditions ("Terms") govern your use of this Site. By accessing, viewing, creating an account with or using the content, material, or services available on or through this Site, you indicate that you have read and understand these Terms, that you agree to them and intend to be legally bound by them. By creating an account on the Site on behalf of a company, you represent and warrant to Marleylilly that you are an employee or agent of that company, that you have full power and authority to bind that company to these Terms, and that such company shall be legally bound by reason of your acceptance of these Terms. If you do not agree to these Terms, or if you are under 18 years of age, you are not granted permission to use this Site and must exit immediately.
All prices displayed on the Site are quoted in U.S. dollars. The pricing available on this Site is for information purposes only for use by Marleylilly’s customers and potential customers and subject to change/verification. Marleylilly’s prices and the availability of Marleylilly products or services are subject to change without notice. While Marleylilly strives to provide accurate product and pricing information, pricing or typographical errors may occur. Marleylilly cannot confirm the price of any Marleylilly product or service until after an order is placed. In the event that a product or service is listed on the Site at an incorrect price or with incorrect information due to an error in pricing or product information, Marleylilly shall have the right, at its sole discretion, to refuse or cancel any orders placed for that product or service, regardless of whether the order has been confirmed and your account charged. In the event that a product or service is mispriced, Marleylilly may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. The risk of loss and title for all products purchased by you and shipped by us pass to you upon our delivery to the carrier for shipment. The risk of loss and title for all products purchased by you and shipped directly by one of our vendors pass from such vendor to you upon such vendor's delivery to the carrier for shipment.
Marleylilly reserves the right, at its sole discretion, to refuse or cancel any order for any reason. The receipt by you of an order confirmation does not constitute our acceptance of an order. Due to the customized nature of the goods sold by Marleylilly, you will be charged upon authorization of your payment method and verification of your order information for accuracy. Among the circumstances that may result in your order being cancelled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by Marleylilly’s credit and fraud avoidance department. Marleylilly may also require additional verifications or information before accepting any order. Marleylilly will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your payment has been received, Marleylilly will issue a credit to your account in the amount of the charge.
Any and all orders placed through the Site are subject to our Shipping Policy. For more information, click here to view the Shipping Policy, which is incorporated into these Terms by reference, as if set forth fully herein.
Marleylilly products or services cannot be returned or exchanged due to the personalized nature of the products and services.
We use a third party payment processor to process credit card transactions made through the Site. If you purchase products from us or make any payments via the Site with your credit card, the credit card information that you submit to us will be protected by encryption, such as with the Secure Socket Layer (SSL) protocol. Encryption decreases the likelihood that your credit card information will be stolen or intercepted during transmission to us. You are responsible for all charges incurred under your account, whether made by you or another person using your account. If for any reason we do not receive payment for a purchase, we may exercise our rights in law and equity, including: (a) immediately suspending or terminating your account; (b) seeking collection of the outstanding amount owed; and (c) seeking legal action against you for the breach of these Terms. You are also responsible for paying any governmental taxes imposed in connection with use of the Site or the purchase or any products or services made available through the Site, including sales, use, and excise taxes (excluding only taxes on our net income).
As between you and Marleylilly, Marleylilly owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components and any software concepts and documentation and other material on, in or made available through the Site ("Site Materials"), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Materials. All Site Materials are protected pursuant to copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials. As between any user and Marleylilly, all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Site are proprietary to Marleylilly or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site Materials, other than the right to use the Site Materials in accordance with these Terms.
Use of This Site.
You agree that you will not use the Site for (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including import, export, copyright, and trademark laws); (b) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Site Materials, unless otherwise authorized by these Terms or in a separate written agreement with Marleylilly; (c) attempting to gain unauthorized access to Marleylilly’s computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or any services provided through the Site; (d) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Site aimed at preventing or restricting the unauthorized use of the Site or any of the Site Materials; (e) any use of data mining, scraping, robots, spiders, crawlers or any other data gathering or extraction tools, except to the extent the Site is indexed by general purpose consumer accessible search engines, including Google, Yahoo, or Bing; (f) sending unsolicited email, including promotions and/or advertising; (g) attempting to interfere with Marleylilly’s service to any other account holder, or user of the Site, host or Marleylilly network, including via means of submitting a virus to, overloading, "flooding," "spamming," "mailbombing," or "crashing" the Site; or (h) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. You may use the Site and the Site Materials consistently with these Terms. Any other use of the Site or Site Materials, including the aforementioned unauthorized uses, without prior written permission of Marleylilly is strictly prohibited. You acknowledge and agree that the unauthorized use of the Site or the Site Materials could cause irreparable harm to Marleylilly and that in the event of such unauthorized use, Marleylilly shall be entitled to an injunction in addition to any other remedies available at law or in equity.
Materials Submitted to the Site.
Certain features of the Site may allow you to contribute comments, feedback, information, content, text, files, graphics, postings, and other materials and information for access, use, viewing and commentary by other users to the Site ("User Content"). By posting User Content, you represent that you have the full legal right to provide the User Content and that use of the User Content by the Site and all other persons and entities will not (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) constitute disclosure of any confidential information owned by any third party. Upon your submission of User Content or other material or information to Marleylilly, you grant Marleylilly a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the User Content, all without any compensation to you whatsoever. For the avoidance of doubt, we shall be under no obligation to: (1) maintain any User Content in confidence; (2) pay any compensation for any User Content; or (3) respond to any User Content. If you believe that any content or postings on the Site violate your intellectual property or other rights, please follow our Complaint Procedure in Section 18 of these Terms.
We have made every effort to display the colors of our products that appear on this Site as accurately as possible. However, since the actual colors you see depend upon your computer and monitor, we cannot guarantee that the colors displayed to you will be completely accurate.
Third Party Web Sites and Content.
The Site may contain links to other Internet Web sites for the convenience of users in locating information, products, or services that may be of interest. Use of such third party links, the Site and the Site Materials and any other material or content on and made available through the Site is entirely at your own risk. Marleylilly does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions you conduct or enter into with third parties. Your use of any third party’s website is at your own risk, and subject to the terms and conditions of such other websites. Marleylilly does not endorse any product, service, or treatment provided on a third party website or advertised or provided on the Site.
Marleylilly, its subsidiaries, and affiliates, are not responsible for and do not guarantee the accuracy or completeness of any Site Materials, User Content, products, data, services, links, advertisements or other items contained within the Site. Marleylilly reserves the right to immediately remove any Site Materials or User Content for any reason or for no reason. Marleylilly cannot and does not review all communications or products made available on or through the Site, but, although not obligated to, may review, verify, make changes to or remove any User Content, Site Materials, the Site or the products or services made available in connection with the Site, including information submitted in connection with the Site Materials or other features at any time, with or without notice in its sole discretion. You agree that you must evaluate and bear all risks associated with the use of Site Materials or User Content and that you may not rely on such Site Materials or User Content.
THE SITE, THE SITE MATERIALS, USER CONTENT, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE ARE MADE AVAILABLE "AS IS" AND "WITH ALL FAULTS." USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. MARLEYLILLY AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE, THE USER CONTENT, THE SITE MATERIALS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL USER CONTENT, THE SITE, THE SITE MATERIALS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, IS WITH YOU.
LIMITATION OF LIABILITY. MARLEYLILLY AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SITE, THE USER CONTENT, THE SITE MATERIALS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR MARLEYLILLY HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF MARLEYLILLY AND ITS LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITE, USER CONTENT, THE SITE MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, OR THE SERVICES, PRODUCTS, DATA OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE SITE AND THE SERVICES AND PRODUCTS.
Exceptions to Limitations and Exclusions of Liability.
Please note that some jurisdictions, including New Jersey, do not permit some of the limitations or exclusions of liability set forth in Sections 13 and 14 above – including, in New Jersey, limitations of warranties for consumer products and services. Accordingly, some of the foregoing exclusions may not apply to you. We encourage you to consult a local attorney for legal counsel on these issues. If any of the limitations or exclusions of liability set forth in these Terms is deemed invalid or unenforceable for any reason, then the limitation or exclusion shall apply to the greatest extent permitted by applicable law. If you are dissatisfied with the Site or any of these Terms, your sole and exclusive remedy is to discontinue using the Site.
You agree to indemnify Marleylilly and its directors, officers, employees, agents, contractors and licensors ("Marleylilly Indemnitees") against all claims, actions, suits, and other proceedings ("Claims") arising out of or incurred in connection with the Site and your use of the Site, the Site Materials or any services, product or data obtained through the Site, your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, the User Content, the Site Materials, the services, products, information and other materials on, in and made available through the Site, (except to the extent attributable to Marleylilly), or any breach by you of these Terms and shall indemnify and hold Marleylilly Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of Marleylilly. Marleylilly or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Marleylilly or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to Marleylilly, subject to the right of Marleylilly to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
Marleylilly uses reasonable efforts to ensure that the Site is generally available. However, there will be occasions when access to the Site will be interrupted or unavailable. Marleylilly will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that Marleylilly shall not be liable to you for any modification, suspension or discontinuance of the Site. You understand that the technical processing and transmission of any Site content 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. Please be advised that we do not guarantee that any information sent from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to Marleylilly via the Site or the Internet, including, for example, personal information such as your name or address.
If you believe that any content or postings on this Site violates your intellectual property or other rights, please notify Marleylilly at firstname.lastname@example.org with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: "The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message."
Changes to these Terms; Termination.
Marleylilly reserves the right at any time and without prior notice, at our sole discretion, to modify, alter or update these Terms. We will notify you on the Site or by email of any new or revised Terms, including information regarding the location of the new or revised terms and conditions. Your use of the Site following any changes means that you agree to follow and be bound by the terms as changed. Any change to these Terms shall be effective as to any visitor who has visited the Site before the change was made. It is the obligation of users visiting the Site before the change to learn of changes to the Terms since their last visit. Marleylilly may suspend or terminate your account and/or your ability to use the Site, or any services on the Site for failure to comply with these Terms, for providing Marleylilly with untrue or inaccurate information about yourself, for infringement upon Marleylilly proprietary rights, or for any other reason whatsoever or for no reason.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, without regard to any conflict-of-law rules or the United Nations Convention on Contracts for the International Sale of Goods. The arbitrator shall not be bound by rulings in prior arbitrations involving different Site users, but is bound by rulings in prior arbitrations involving the same Site user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, Marleylilly will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Marleylilly should be submitted by mail to the AAA along with your demand for arbitration and Marleylilly will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, Marleylilly will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the costs of accessing arbitration from being prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Marleylilly for all fees associated with the arbitration paid by Marleylilly on your behalf that you otherwise would be obligated to pay under the AAA’s rules. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall still apply.
These Terms constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. No waiver by us of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The headings and captions in these Terms are intended for convenience only and shall in no way affect the interpretation of the Terms. Notwithstanding the foregoing, these Terms and the information provided in this Site in no way override the terms and conditions of your purchase of any product or service, except as specifically provided herein. To the extent any area within this Site contains SPECIFIC TERMS AND CONDITIONS concerning use of that particular area of the Site ("Specific Terms"), those Specific Terms are in addition to these Terms. To the extent there is a direct conflict between these Terms and the Specific Terms, the Specific Terms shall prevail.
Acts Beyond Control.
We shall not be liable for any nonperformance or delay in performance caused by any act beyond our reasonable control, including acts or omissions of third parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.
The Site is controlled and operated from within the United States. Without limiting anything else, Marleylilly makes no representation that the Site, Site Materials, User Content, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of Marleylilly to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words "includes" and "including" and their syntactical variations shall be deemed followed by the words "without limitation."
Dated: October 22, 2020