Last updated 12/20/2022
End User License Agreement and Terms of Service
This End User License Agreement and Terms of Service (the
"EULA") is a binding contract between you, an individual user
("you") or the Subscribing Entity (defined below) on whose behalf you
are acting, and Rhonda Stanbury ("us" or "we") governing your
use of Rhonda Stanbury services available through the Rhonda Stanbury website (the
"Website") and the Rhonda Stanbury mobile application(s) (the “App(s)”),
where those services are the “Service”), as well as your access to and use of
the Website and App. BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE,
YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF
YOU DO NOT AGREE TO THE EULA, THEN YOU MAY NOT USE THE SERVICE.
To have a copy of the EULA and the Rhonda Stanbury Privacy Policy (the
"Privacy Policy") sent to you, contact Rhonda Stanbury
at [email protected].
-
1) Summary of Material Terms.
- 1.1) As provided in
greater detail in the EULA (and without limiting the express language of
the EULA), you acknowledge the following:
- a) you consent
to the collection, use, and disclosure of your personally identifiable
information in accordance with the Privacy Policy, including with
respect to the collection of location information;
- b) the App,
Website and Service is provided "as is" without warranties of
any kind and Rhonda Stanbury's liability to you is limited; and
- c) disputes
arising hereunder will be resolved by binding arbitration.
-
2) General.
The Service is
a platform enabling people and companies seeking interior design services
("Clients") to get a custom interior design, including
one final design rendering, and one revision of the final design rendering
based on user comments (Clients are "Users").
- 2.1) Acceptance of Privacy
Policy. Your use of the Service is subject to the Privacy
Policy, which is available by email and is hereby incorporated by
reference into the EULA. By using the Service you agree that you have
read, understood, and agree to the data collection, use, and disclosure
provisions set forth in the Privacy Policy.
- 2.2) Third Party Fees. You
may incur third party fees through use of the Service, such as fees
charged by Vendors (defined below) for products or services. In addition,
you may be subject to third party terms, such as Vendors’ warranties and
return policies. You acknowledge and agree that you are solely
responsible for all such fees incurred by you for use of the Service, and
you agree to pay all such fees and abide by all such terms.
- 2.3) Changes to the EULA. We
may revise the EULA at any time by posting an updated version You should
visit this page periodically to review the most current EULA, because you
are bound by it. Your continued use of the Service after a change to the
EULA constitutes your binding acceptance of the EULA.
- 2.4) Eligibility. If
you are using or opening an account on the Service on behalf of a
company, entity, or organization (each a "Subscribing Entity"),
then you represent and warrant that you: (i) are an authorized
representative of that Subscribing Entity with the authority to bind such
entity to the EULA and (ii) agree on behalf of such Subscribing Entity to
bind the Subscribing Entity to the EULA.
- 2.5) Children. No
part of the Service is directed to persons under the age of 16. IF YOU ARE UNDER 16 YEARS OF
AGE,
PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. If
you are under 18 years of age, you represent and agree that you possess
the legal consent of your parent or guardian to access and use the
Service.
-
3) Scope of License to Users.
- 3.1) License Grant to You. The
Website and App is licensed, not sold, to you for use only under the
terms of the EULA. Subject to your complete and ongoing compliance with
the terms and conditions of the EULA, Rhonda Stanbury hereby grants you a personal,
limited, revocable, non-transferable license to access and use the
Website and the App, in both instances solely for your own use or for the
use of the Subscribing Entity on whose behalf you are authorized to act
to access and receive the Service.
- 3.2) License Limitations. You
may not modify, alter, reproduce, or distribute the Website or App. You
may not rent, lease, lend, sell, redistribute or sublicense the Service,
Website or App. You may not copy, decompile, reverse engineer,
disassemble, attempt to derive the source code of, modify, or create
derivative works of any portion of the Website or App, any updates, or
any part thereof (except as and only to the extent any foregoing
restriction is prohibited by applicable law), nor attempt to disable or
circumvent any security or other technological measure designed to
protect the Service, Website or App or any content available through the
Service. If you breach these license restrictions, or otherwise exceed
the scope of the licenses granted in the EULA, then you may be subject to
prosecution and damages, as well as liability for infringement of
intellectual property rights, and denial of access to the Service.
- 3.3) Applicability to
Updates. The terms of the EULA will govern any updates
provided to you by Rhonda Stanbury that replace and/or supplement the Website or
App, unless such upgrade is accompanied by a separate license or revised
EULA, in which case the terms of that license or revised EULA will
govern.
-
4) Registration and Eligibility.
- 4.1) Account Types and
Registration. Anyone may browse the public-facing pages of the
Website, App, and Service and take the style profile, but to start the
custom design plan, the client must register.
- 4.2) Client. To
become a Rhonda Stanbury Design Client, you must provide
your zip code, phone number, email address, name and password. You
will also take a user survey (to help us determine your preferred design
styles), provide us photos of your space, and provide us additional
information about your room and project. You will also
be afforded the opportunity to have a phone call or online chat with your
chosen designer. The designer will then provide you suggestions for
your space as well as a shoppable list of products according to your
service package selected.
- 4.3) Account Security. Your
account is personal to you, and you may not share your account
information with, or allow access to your account by, any third party. As
you will be responsible for all activity that occurs under your access
credentials, you agree to use reasonable efforts to prevent unauthorized
access to or use of the Service and to preserve the confidentiality of
your username and password, and any device that you use to access the
Service. You agree to notify us immediately of any breach in secrecy of
your log-in information. If you have any reason to believe that your
account information has been compromised or that your account has been
accessed by a third party, you agree to immediately notify Rhonda Stanbury by
e-mail to [email protected]. You will be solely responsible for
the losses incurred by Rhonda Stanbury and others due to any unauthorized use of
your account.
-
5) Content You Submit; License Grants from You.
- 5.1) Your Content. If
you are a Client, you may be able to create, post, or share content, such
as messages, comments, or pictures of your space, floor plans and
household objects, on or through the Service ("Your Content")
with Rhonda Stanbury. Your Content may be made public, so do not upload any
confidential content. Rhonda Stanbury claims no ownership or control over Your Content.
You or a third-party licensor, as appropriate, retain all copyright,
patent, and trademark rights to any of Your Content that you post on or
through the Service. You are responsible for protecting those rights.
Separately, you may give Rhonda Stanbury or Rhonda Stanbury’s agent the right to take
photos or record video of areas of your home after the design services
are complete (“After Images”).
- 5.2) You, and not Rhonda Stanbury,
are responsible and liable for Your Content. Because we
do not control the Your Content or the content posted on or through the
Service by other users (collectively with Your Content, “UGC”), we cannot
and do not warrant or guarantee the truthfulness, integrity, suitability,
or quality of that UGC. You also agree and understand that by accessing this
Service, you may encounter UGC that you may consider to be objectionable.
We have no responsibility for any UGC, including without limitation any
errors or omissions therein.
- 5.3) We may disclose and/or
remove UGC. Rhonda Stanbury
has certain rights. We have the right (but do not assume the obligation)
to:
- a) monitor all UGC;
- b) remove or block any
UGC at any time without notice at our sole and absolute discretion;
- c) disclose any UGC
and the identity of the user who posted it in response to a subpoena or
whenever we believe that disclosure is appropriate to comply with the
law or a court order, to prevent or investigate a possible crime or
other violation of law, to protect the rights of Rhonda Stanbury or others, or
to enforce these terms; and
- d) terminate your access
to and use of this Service, or to modify, edit or block your
transmissions thereto, for any reason and in our sole discretion.
- 5.4) You agree that
our exercise of such discretion shall not render us the owners of UGC you
post, and that you will retain ownership thereof as described above.
- 5.5) Your Content
cannot be unlawful, harmful, hateful, threatening, abusive, harassing,
libelous, defamatory, obscene, vulgar, pornographic, profane, racially
disparaging, indecent, or invasive of another’s privacy.
- 5.6) License Grants to
HAVENLY. By creating, posting, or sharing Your Content on
or through the Service, or allowing Rhonda Stanbury to take, obtain, or record
After Images, you grant Rhonda Stanbury a world-wide, non-exclusive,
sub-licensable, royalty-free, fully paid, transferable, perpetual,
irrevocable license to use, modify, remove, publish, transmit, or display
Your Content and After Images in any and all media or form of
communication now existing or hereinafter developed in order to operate
Rhonda Stanbury’s business, and to provide Services, including, without
limitation, (a) facilitate a design or recommended product list for the
Client (b) advertise and promote the Service, and (c) with regard to
After Images only, for any lawful business purpose.
- 5.7) You Must Have Rights to
the Content You Post. You represent and warrant that: (i)
you own Your Content or otherwise have the right to grant the license set
forth in the EULA, (ii) the posting and use of Your Content on or through
the Service, or of the After Images does not violate the privacy rights,
publicity rights, copyrights, contract rights, intellectual property
rights, or any other rights of any person, and (iii) the posting of Your
Content on the Service does not result in a breach of contract between
you and a third party. You agree to pay for all royalties, fees, and any
other monies owing any person by reason of Your Content that you post on
or through the Service You also acknowledge and agree that Your Content
and After Images is non-confidential and non-proprietary.
- 5.8) Users may message each
other through the Service. You agree that your use of the
Service will not include sending unsolicited marketing messages or
broadcasts (i.e. spam). Rhonda Stanbury will utilize any means possible to block
spammers and abusers from using the Service If you believe spam
originated from the Service, please email us immediately
at [email protected].
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6) Fees; Payments.
- 6.1) Fees. The
estimated fee (the "Estimated Fee") for the Service(s) and
Items purchased through the Service (e.g., all design package services
and merchandise products) will be set forth during the ordering process
for Service(s) that you go through on the Website. The Estimated Fee on
Items purchased through the Services is based on the price known to
Rhonda Stanbury at the time you checkout through the Services. Because Rhonda Stanbury
works with a number of Vendors, we do not have control over the pricing
of all Items offered through our Services (see Section 7.1). After you
place your order, Rhonda Stanbury will notify you of any discrepancies in Item
prices, in which case you will have the option of accepting the actual
price or rejecting the Item for which the price changed. Rhonda Stanbury will
process the order (a) for all Items for which the price did not change
from the Estimated Fee, and (b) for all Items for which you have approved
a price change from the Estimated Fee (where the final fee for the items
in (a) and (b) is the “Fee”). The Fee is due and payable in advance of
Client’s design, product recommendation process, or order placement of Items.
- 6.2) Payments. The
Service currently uses third parties to process payments. Our third- party payment
processors accept payments through various credit cards, as detailed on
the applicable payment screen. All monetary transactions on the Service
take place in U.S. Dollars. When you use the Service to place an order
for Items, you authorize the purchase and delivery of the Items (subject
to any confirmation of Item prices, as stated in Section 6.1). You agree
that Rhonda Stanbury will obtain a temporary pre-authorization of your credit
card to cover the cost of the Items you have purchased, along with any
estimated taxes, fees, and shipping costs, and excluding any unvalidated
promotions. You acknowledge that taxes and shipping costs are estimated
at the time of checkout, and you agree to any final tax and/or shipping
costs as calculated by Rhonda Stanbury, based on your shipping location and the
Fee. Your credit card statement will reflect the final total amount
charged to you upon order completion.
Deliveries to
Alaska, Hawaii, U.S. Territories, and Military Addresses (APO/FPO): Items
shipped to Alaska, Hawaii, and U.S. territories may be subject to additional
shipping charges by the Vendor. Rhonda Stanbury will notify you of any discrepancies in
shipment pricing once received from the Vendor. You will have the option of
accepting the actual price or rejecting the Item for which the price changed.
Some heavy or oversized items cannot be shipped outside the contiguous 48
states and may require an outside freight forwarding service, for which you are
solely responsible.
- 6.3) Taxes. The
Fees are exclusive of tax. Clients are responsible for all applicable
government taxes, fees, and service charges (“Taxes”) resulting from a
transaction occurring through the Service. Rhonda Stanbury will collect and remit
such Taxes from Clients where required by law, but a Client may be
responsible for additional Taxes not collected by Rhonda Stanbury. All taxes are
calculated using the Fee.
- 6.4) Refunds. Rhonda Stanbury
may offer any Client a full or partial refund at Rhonda Stanbury's sole
discretion. Please email [email protected] to request a refund.
-
7) Additional Services From HAVENLY.
- 7.1) Third Party Purchases.
A Client may wish to purchase certain items (“Items”) offered by third
parties (each, a “Vendor”) through the Service. Rhonda Stanbury will collect the
cost of these Items (as part of the Fee) from you in advance of Rhonda Stanbury
placing orders with the Vendor for the purchase of the Item(s). All
Vendor terms and conditions apply to these purchases of Items, including
return policies and shipping costs. Return shipping from outside of the
continental United States may result in additional fees. Note that while
Rhonda Stanbury uses reasonable efforts to display the current and accurate price
for Items, the price for Items is dynamic, and the price displayed on the
Service for any particular Item is subject to change. Rhonda Stanbury will
confirm Item pricing before charging Client’s credit card.
- 7.2) Installation.
The Service may offer to assist Clients with installation of furniture
("Installation") for a fee, which will be set forth on the
Service. To facilitate Installation, Rhonda Stanbury may provide third party contractors
personal information to identify location and costs, and facilitate
Installation.
- 7.3) HAVENLY Gift Cards.
No fees apply to purchase or activation of card. Redeemable for services
delivered in the U.S. and on havenly.com only. The card is non-reloadable
and, except where required by law, cannot be redeemed for cash, refunded,
or returned. Treat this card as cash; issuer is not responsible for lost,
damaged or stolen cards, or for unauthorized use. The card has no value
until purchased, and may not be sold or bartered. For card and balance
info, email [email protected] or visit havenly.com. Terms apply
and are subject to change without notice.
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8) Third Party Materials; HAVENLY Content.
- 8.1) You understand
that by using the Service, you may encounter data, information,
applications, materials and other content from third parties, including
other users (collectively, "Third Party Materials"), and data,
information, applications, materials and other content from Rhonda Stanbury
(collectively, "Rhonda Stanbury Content" and, together with Third Party
Materials, but excluding Your Content, "Service Content"), that
may be offensive, indecent, or objectionable Nevertheless, you agree to
use the Service at your sole risk and that Rhonda Stanbury shall not have any
liability to you for any Service Content that may be found to be
offensive, indecent, or that is inaccurate, incomplete, untimely,
invalid, illegal, indecent, of poor quality or otherwise objectionable
You use the Service, and rely upon any Service Content accessible through
the Service, at your sole risk.
- 8.2) In addition,
third party services and Service Content that may be accessed from,
displayed on or linked to your device are not available in all languages
or in all countries HAVENLY makes no representation that the Service, any
third party services, and Service Content are appropriate or available
for use in any particular location To the extent you choose to access
such services or materials, you do so at your own initiative and are
responsible for compliance with any and all applicable laws.
-
9) Your Use of the Service and Service Content.
-
Your right to use the Service is a privilege, not a right, and is expressly
conditioned on the following:
- 9.1) You may access
the Service solely as intended through the provided functionality of the
Service and as permitted under the EULA.
- 9.2) You shall not
copy, reproduce, distribute, publish, display, perform, transmit, stream
or broadcast any part of the Service, Website or App, or content you
encounter on through the Service without Rhonda Stanbury's prior written
authorization, including, by way of example and not limitation, by doing
or engaging in any of the following without Rhonda Stanbury's express written
consent:
- a) altering,
defacing, mutilating or otherwise bypassing any approved software
through which the Service is made available; and
- b) using any
trademarks, service marks, design marks, logos, photographs or other
content belonging to Rhonda Stanbury or obtained from the Service.
- 9.3) You shall not
bypass, circumvent, damage or otherwise interfere with any security or
other features of the Website or App designed to control the manner in
which the Service is used, harvest or mine Service Content from the
Service, or otherwise access or use the Service in a manner inconsistent
with individual human usage. You shall not copy or scrape any Service
Content.
- 9.4) You shall not
undertake, cause, permit or authorize the translation, reverse
engineering, disassembling or hacking of any aspect of the Website or
Service, including any Service Content available on or through the
Service, or attempt to do any of the foregoing, except and solely to the
extent permitted by the EULA, the authorized features of the Service, or
by law, or otherwise attempt to use or access any portion of the Service
other than as intended by Rhonda Stanbury.
- 9.5) You shall not
use, display, mirror, frame or utilize framing techniques to enclose the
Service, including any Service Content available on or through the
Service, or any portion thereof, through any other application or website,
unless and solely to the extent Rhonda Stanbury makes available the means for
embedding any part of the Service or Service Content.
- 9.6) You shall not
access, tamper with, or use non-public areas of the Service, Rhonda Stanbury's
(and its hosting company's) computer systems and infrastructure, or the
technical delivery systems of Rhonda Stanbury's providers.
- 9.7) You shall not
harass, abuse, harm or advocate or incite harassment, abuse or harm of
another person or group, including Rhonda Stanbury's employees, contractors, designers,
and other users.
- 9.8) You shall not
provide any false personal information to Rhonda Stanbury or any other user, or
create a false identify or impersonate another person or entity in any
way.
- 9.9) You shall not
create a new account with HAVENLY, without HAVENLY's express written
consent, if HAVENLY has previously disabled an account of yours.
- 9.10) You shall not
solicit, or attempt to solicit, personal information from other users.
- 9.11) You shall not
restrict, discourage or inhibit any person from using the Service,
disclose personal information about a third person on the Service or
obtained from the Service without the consent of such person, or collect
information about users.
- 9.12) You shall not
use the Service, without HAVENLY's express written consent, to
communicate or facilitate any commercial advertisement or solicitation,
except as expressly permitted in the EULA.
- 9.13) You shall not
gain or attempt to gain unauthorized access to the Service, to other
users' accounts, names or personally identifiable information, or to
other computers or websites connected or linked to the Service.
- 9.14) You shall not
post, transmit or otherwise make available any virus, worm, spyware or
any other computer code, file or program that may or is intended to
disable, overburden, impair, damage or hijack the operation of any
hardware, software or telecommunications equipment, or any other aspect
of the Service or communications equipment and computers connected to the
Service.
- 9.15) You shall not
interfere with or disrupt the Service, or networks or servers connected
to the Service, or violate the regulations, policies or procedures of
such networks or servers.
- 9.16) You shall not
violate any applicable federal, state or local laws or regulations or the
EULA.
- 9.17) You shall not
assist or permit any persons in engaging in any of the activities
describe above.
-
10) Consent to Use of Data.
- 10.1) You agree that
HAVENLY may collect and use technical data and related information,
including, but not limited to, UDID, contacts, usage data, location and
other technical information about your device, system and application
software, and peripherals, that is gathered periodically to facilitate
the provision of software updates, product support, and other services to
you (if any) related to the Service, and to anonymously track and report
your activity inside of the Service, including for analytics purposes
Please see the
Privacy
Policy.
-
11) Ownership.
- 11.1) The Service,
Service Content, After Images, and the media and materials contained
therein, including all intellectual property rights therein, are the sole
and exclusive property of HAVENLY and its licensors. Except for the
limited licenses expressly granted to you under the EULA, no other
rights, licenses, or immunities are granted or will be deemed to be
granted to you under the EULA, either expressly, or by implication,
estoppel or otherwise.
-
12) Feedback.
- 12.1) We appreciate
hearing from our users and welcome your comments regarding the Service
Please be advised, however, that if you send us creative ideas,
suggestions, inventions, or materials ("Creative Ideas"), we
will:
- a) own,
exclusively, all now known or later discovered rights to the Creative
Ideas;
- b) not be
subject to any obligation of confidentiality and will not be liable for
any use or disclosure of any Creative Ideas; and
- c) be entitled
to unrestricted use of the Creative Ideas for any purpose whatsoever,
commercial or otherwise, without compensation to you or any other
person.
-
13) Consequences of Violating These Terms.
- 13.1) We reserve the
right to suspend or terminate your account and prevent access to the
Service for any reason, at our discretion. We reserve the right to refuse
to provide the Service to you in the future. HAVENLY may review and
remove any of Your Content at any time for any reason, including activity
which, in its sole judgment: violates the EULA; violates applicable laws,
rules, or regulations; is abusive, disruptive, offensive or illegal; or
violates the rights of, or harms or threatens the safety of, Users of the
Service. You are responsible for any claims, fees, fines, penalties, and
other liability incurred by us or others caused by or arising out of your
breach of the EULA and your use of the Service.
-
14) HAVENLY's Liability.
- 14.1) Changes to the Service. We
may change, suspend, or discontinue any aspect of the Service at any
time, including hours of operation or availability of the Service or any
feature, without notice or liability.
- 14.2) User Disputes.
We are not responsible for any disputes or disagreements between you and
any third party you interact with using the Service. This includes
disputes between Clients and designers. You assume all risk associated
with dealing with third parties and designers. You agree to resolve
disputes directly with the other party. You release HAVENLY of all
claims, demands, and damages in disputes among users of the Service. You
shall not involve us in such disputes. Use caution and common sense when
using the Service. If you participate in an Installation, you are solely
responsible for your interactions with other Users. You understand that
HAVENLY does not currently conduct background checks, including criminal
background checks, on its Users. HAVENLY makes no representations or
warranties as to the conduct of Users. IN NO EVENT WILL THE RELEASED
PARTIES (AS DEFINED BELOW) BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER
DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR
INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE
ELSE IN CONNECTION WITH YOUR USE OF THE SERVICE, INCLUDING WITHOUT
LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES
RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THIS
SERVICE OR PERSONS YOU MEET THROUGH THE SERVICE. YOU AGREE TO TAKE
REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE
SERVICE, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. YOU ASSUME ALL
RISK WHEN ENGAGING THE SERVICES OF ANY OTHER USER AND IN CONNECTION WITH
USING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY RISKS ASSOCIATED WITH
OBTAINING SERVICES FROM ANY DESIGNER OR PROVIDING ANY SERVICES TO ANY
CLIENT, INCLUDING ALL RISKS OF PHYSICAL OR EMOTIONAL INJURY OR HARM
RESULTING ANY WAY OR ARISING OUT OF INSTALLATION SERVICES OR CLIENTS
OBTAINED THROUGH THE SERVICE. ALL USERS, INCLUDING CLIENTS AND DESIGNERS,
HEREBY EXPRESSLY AGREE NOT TO HOLD THE RELEASED PARTIES LIABLE FOR ANY
INSTALLATION, INSTRUCTION, ADVICE OR SERVICES DELIVERED WHICH ORIGINATED
THROUGH THE SERVICE AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ANY
LIABILITY WHATSOEVER FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES
THAT ARISE OR RELATED IN ANY WAY TO THE SERVICE, THE INFORMATION PROVIDED
THROUGH THE SERVICE AND THE SERVICES PROVIDED BY OR TO ANY USER OF THE
SERVICE.
- 14.3) Content Accuracy. We
make no representations about accuracy, reliability, completeness, or
timeliness of any contents of the Service, including designs. Similarly,
we make no representations about accuracy, reliability, completeness, or
timeliness of any data from a third-party service provider or the quality
or nature of third-party products or services obtained through the
Service. Use the Service at your own risk.
- 14.4) Third-Party Websites. The
Service may include links to third party websites and applications. You
are responsible for evaluating whether you want to access or use them. We
are not responsible for and do not endorse any features, content,
advertising, products, or other materials on other websites or
applications. You assume all risk and we disclaim all liability arising
from your use of them.
- We make no
promises and disclaim all liability of specific results from the use of the
Service.
-
15) Termination.
- 15.1) The EULA is
effective until terminated by you or HAVENLY. Your rights under the EULA
will terminate automatically without notice from HAVENLY if you fail to
comply with any term(s) of the EULA (including by violating any license
restriction provided herein). You may terminate the EULA by uninstalling
the App or ceasing use of the Service. Upon any termination of the EULA,
you must immediately cease all use of the Service. If you are a designer
that was selected by a user to provide a design and you terminate your
account before you have completely delivered the Design Package, you may
not be allowed to use the Service in the future.
-
16) Disclaimer.
- 16.1) "Released
Parties"
include
HAVENLY and its affiliates, officers, employees, agents, partners, and
licensors YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE
SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN "AS
IS" AND "AS AVAILABLE" BASIS AND THE RELEASED PARTIES EXPRESSLY
DISCLAIM ALL WARRANTIES OF ANY KIND ARISING FROM OR RELATED TO PRODUCTS
PURCHASED OR RECOMMENDED THROUGH THE SERVICE (“PRODUCTS”) OR THE SERVICE,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i)
THE SERVICE OR PRODUCTS WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL
BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT
MAY BE OBTAINED FROM THE USE OF THE SERVICE, INCLUDING DATA, WILL BE
ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, OTHER GOODS, DATA
OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS AND, (iv)
ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL
OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN
DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM
THE USE OF ANY SUCH MATERIAL.
-
17) Limitation of Liability.
- 17.1) YOU EXPRESSLY
UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY
DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS,
GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HAVENLY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE
OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS OR OTHER GOODS,
DATA, INFORMATION OR SERVICES OBTAINED OR PURCHASED OR MESSAGES RECEIVED
OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE;
(iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v)
YOUR RELIANCE ON CONTENT OR DATA MADE AVAILABLE BY US; (vi) THE PURCHASE
OR USE OF PRODUCTS, OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR
THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY
NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM
LIABILITY ARISING OUT OF OR IN CONNECTION WITH PRODUCTS, THE SERVICE OR
YOUR USE OF COMPANY CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER
IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE
GREATER OF (A), IF YOU ARE A CLIENT, THE FEES YOU HAVE PAID TO HAVENLY
FOR THE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY, (B) IF YOU ARE A
DESIGNER, THE FEES PAID BY HAVENLY TO YOU, AND (C) $100.
-
18) Indemnity.
- 18.1) You agree to
defend, indemnify, and hold harmless the Released Parties from and
against any claims, actions, or demands, including without limitation
reasonable legal and accounting fees, alleging or resulting from (i) your
use of or reliance on any Third-Party Content, (ii) your use of or
reliance on any Rhonda Stanbury Content or designs, or (iii) your breach of the
EULA. We will provide notice to you promptly of any such claim, suit, or
proceeding.
-
19) Third Party Disputes.
- 19.1) HAVENLY IS NOT
AFFILIATED WITH ANY SERVICE PROVIDER OR THIRD PARTY SERVICE, AND ANY
DISPUTE YOU HAVE WITH ANY SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER
THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE
SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU
IRREVOCABLY RELEASE THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS
AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN
AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
-
20) Copyright Policy.
-
21) Choice of Law; Arbitration Agreement & Waiver of Certain
Rights
- 21.1) The EULA and
the relationship between you and HAVENLY will be governed by the laws of
the State of Colorado without regard to its conflict of law provisions.
- 21.2) You and HAVENLY agree that we will
resolve any disputes between us through binding and final arbitration
instead of through court proceedings. You and HAVENLY hereby waive any
right to a jury trial of any Claim. All controversies, claims,
counterclaims, or other disputes arising between you and HAVENLY or you
and any of the Released Parties relating to the EULA, use of HAVENLY’s
Services, or your relationship or interaction with any of the Released
Parties (a "Claim") will be resolved exclusively by final and
binding arbitration conducted in accordance with the Rules of the American
Arbitration Association ("AAA Rules"). You must file any Claim
within one (1) year after such Claim arises or it will be barred. The
arbitration will be heard and determined by a single arbitrator. The
arbitrator's decision in any such arbitration will be final and binding
upon the parties and may be enforced in any court of competent
jurisdiction. The parties agree that the arbitration proceedings will be
kept confidential and that the existence of the proceeding and any
element of it (including, without limitation, any pleadings, briefs or
other documents submitted or exchanged and any testimony or other oral
submissions and awards) will not be disclosed beyond the arbitration
proceedings, except as may lawfully be required in judicial proceedings
relating to the arbitration, by applicable disclosure rules and
regulations of securities regulatory authorities or other governmental
agencies, or as specifically permitted by state law. The Federal
Arbitration Act and federal arbitration law apply to this agreement.
However, the arbitrator, and not any federal, state, or local court or
agency, shall have the exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability, or
formation of these Terms including, but not limited to, a claim that all
or any part of these Terms is void or voidable.
- Payment of all
filing, administrative, and arbitrator fees will be governed by the AAA Rules;
however, upon a showing of financial hardship, HAVENLY will consider payment of
as much of the administrative costs and arbitrator's fees required for the
arbitration as the arbitrator deems necessary to prevent the cost of the
arbitration from being prohibitive. In the final award, the arbitrator may
apportion the costs of arbitration and the compensation of the arbitrator among
the parties in such amounts as the arbitrator deems appropriate. You and
HAVENLY shall be responsible for their own attorney’s fees and costs in
arbitration, unless they are authorized by law or the arbitrator determines
that a claim or proceeding was frivolous or brought for an improper purpose or
in bad faith (as measured by the standards set forth in Federal Rule of Civil
Procedure 11(b)).
- This
arbitration agreement does not preclude you or HAVENLY from seeking action by
federal, state, or local government agencies. You and HAVENLY also have the
right to bring qualifying claims in small claims court. In addition, you and
HAVENLY retain the right to apply to any court of competent jurisdiction for
provisional relief, including pre-arbitral attachments or preliminary
injunctions, and any such request shall not be deemed incompatible with the
EULA, nor a waiver of the right to have disputes submitted to arbitration as
provided in the EULA.
- Neither you
nor HAVENLY may act as a class representative or private attorney general, nor
participate as a member of a class of claimants, with respect to any Claim.
Claims may not be arbitrated on a class or representative basis. The arbitrator
can decide only your and/or HAVENLY's individual Claims. The arbitrator may not
consolidate or join the claims of other persons or parties who may be similarly
situated.
- If any
provision of this Section is found to be invalid or unenforceable, then that
specific provision shall be of no force and effect and shall be severed, but
the remainder of this Section shall continue in full force and effect. If for
any reason a claim proceeds in court rather than in arbitration you and HAVENLY
each waive any right to a jury trial. No waiver of any provision of this
Section of the EULA will be effective or enforceable unless recorded in a
writing signed by the party waiving such a right or requirement. Such a waiver
shall not waive or affect any other portion of the EULA. The arbitrator may
award in the arbitration the same damages or other relief available under
applicable law, including injunctive and declaratory relief, as if the action
were brought in court on an individual basis, including public injunctive
relief. This Section of the EULA will survive the termination of your
relationship with HAVENLY.
- THIS SECTION
LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE
RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR
REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN
AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS
THAT YOU OR HAVENLY WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN
ARBITRATION.
-
22) Miscellaneous.
- 22.1) Assignment. You
may not assign this EULA or any of the rights or licenses granted hereunder,
directly or indirectly, including by sale, merger, change of control,
operation of law or otherwise, without the prior written consent of
HAVENLY. HAVENLY may assign the EULA, including all its rights hereunder,
without restriction.
- 22.2) Survival. The
provisions of the EULA that are intended to survive the termination of
the EULA by their nature will survive the termination of the EULA,
including, but not limited to, Sections 2 (General), 5 (Content You
Submit; License Grants from You), 8 (Third Party Software), 9 (Your Use
of the Service and Service Content), 10 (Consent to Use of Data), 11
(Ownership), 12 (Feedback), 14 (HAVENLY's Liability), 15 (Termination),
16 (Disclaimer), 17 (Limitation of Liability), 18 (Indemnity), 19 (Third
Party Disputes), 20 (Copyright Policy), 21 (Dispute Resolution), and 22
(Miscellaneous).
- 22.3) Consent to Electronic
Communications. By using the Service, you consent to receiving
certain electronic communications from us as further described in our
Privacy Policy. Please read our Privacy Policy to learn more about your
choices regarding our electronic communications practices. You agree that
any notices, agreements, disclosures, or other communications that we
send to you electronically will satisfy any legal communication
requirements, including that such communications be in writing.
- 22.4) The EULA,
together with the Privacy Policy and any other agreements expressly
incorporated by reference herein, constitute the entire and exclusive
understanding and agreement between you and HAVENLY regarding your use of
and access to the Service, and, except as expressly permitted above, may
be amended only by a written agreement signed by authorized
representatives of all parties to the EULA. The failure to require
performance of any provision will not affect our right to require
performance at any time thereafter, nor will a waiver of any breach or
default of the EULA or any provision of the EULA constitute a waiver of
any subsequent breach or default or a waiver of the provision itself. Use
of section headers in the EULA is for convenience only and will not have
any impact on the interpretation of particular provisions. In the event
that any part of the EULA is held to be invalid or unenforceable, the
unenforceable part shall be given effect to the greatest extent possible
and the remaining parts will remain in full force and effect. You agree
that no joint venture, partnership, employment, or agency relationship
exists between you and HAVENLY as a result of the EULA or use of the Service.
- 22.5) Contacting HAVENLY.
You can contact Rhonda Stanbury by e-mail at [email protected], or by
U.S. Post at Rhonda Stanbury,
3320 Whispering Dr N, Largo, FL 33771.
- 22.6) NOTICE REGARDING APPLE.
- You
acknowledge that the EULA is between you and HAVENLY only, not with Apple, and
Apple is not responsible for the App or the content thereof Apple has no
obligation whatsoever to furnish any maintenance and support services with
respect to the App. In the event of any failure of the App to conform to any
applicable warranty, then you may notify Apple and Apple will refund the
purchase price for the relevant App to you; and, to the maximum extent
permitted by applicable law, Apple has no other warranty obligation whatsoever
with respect to the App Apple is not responsible for addressing any claims by
you or any third party relating to the App or your possession and/or use of the
App, including, but not limited to: (i) product liability claims; (ii) any
claim that the App fails to conform to any applicable legal or regulatory
requirement; and (iii) claims arising under consumer protection or similar
legislation. Apple is not responsible for the investigation, defense,
settlement and discharge of any third party claim that the App or your
possession and use of the App infringes that third party's intellectual
property rights. You agree to comply with any applicable third party terms,
when using the App Apple, and Apple's subsidiaries, are third party
beneficiaries of the EULA, and upon your acceptance of the EULA, Apple will
have the right (and will be deemed to have accepted the right) to enforce the
EULA against you as a third party beneficiary of the EULA. You hereby represent
and warrant that (i) you are not located in a country that is subject to a U.S Government
embargo, or that has been designated by the U.S. Government as a
"terrorist supporting" country; and (ii) you are not listed on any
U.S. Government list of prohibited or restricted parties. If HAVENLY provides a
translation of the English language version of these Terms, then the
translation is provided solely for convenience, and the English version shall
prevail.