Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS AND CONTAINS A DISPUTE RESOLUTION CLAUSE. BY UTILIZING WWW.EMMYSBEST.COM, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Emmy’s Best, LLC ("EB") offers a e-commerce site which allows users of www.emmysbest.com (“EB User”, “You” or “Your”) the ability to purchase pet-related products (“EB Products”) via a website or mobile application (collectively the “EB Platform”). EB periodically updates features and adds new ones depending on market conditions and other factors.
These Terms and Conditions relate to the use of the EB Platform and the EB Products. By accessing the EB Platform and/or utilizing the EB Products, You agree to be bound by these Terms and Conditions. In the event that EB updates these Terms and Conditions, your use of the EB Platform/EB Products following the update shall be deemed as your acceptance of, and you will be bound by, the updated Terms and Conditions. The latest version of these Terms and Conditions will be posted online at www.emmysbest.com.
1. Content. You understand that all listings, messages, text, files, images, photos, video, audio or other materials ("Content") posted on, transmitted through, or linked from the EB Platform are the sole responsibility of the person or organization from whom such Content originated. You also understand that EB does not control and is not responsible for Content made available through the EB Platform, and that by using the EB Platform, you may be exposed to content that is offensive, indecent, inaccurate, misleading or otherwise objectionable. Furthermore, the EB Platform and Content made available through the EB Platform may contain links to other web sites that are completely independent of EB. EB makes no representation or warranty as the accuracy, completeness or authenticity of the information contained on such web site. Under no circumstances will EB be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, linked or otherwise made available via the EB Platform. You understand and agree that any uploading or posting will be at your sole risk and EB Platform shall not be responsible to you in any way. Further, EB Platform does not provide any warranty as to your use of third-party content or software that you obtain from the EB Platform. You are also fully responsible for any Content you post on the EB Platform and to the consequences of any such Content. Although EB does not claim ownership of Content that its users post, by posting Content to the EB Platform, you automatically grant, and you represent and warrant that you have the right to grant, to EB an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, perform, display and distribute said Content and to prepare derivative works of, or incorporate into other works, said Content, and to grant and authorize sublicenses through multiple tiers of the foregoing. You also understand and agree that EB, in its sole discretion, may delete any Content for any reason.
2. Intellectual Property and Software. Title to the intellectual property rights owned or otherwise utilized by EB and/or EB’s affiliated entities, including, but not limited to its patents, patent applications, processes, registered and common law trademarks, service marks, trade names, trade dress, symbols, slogans, emblems, logos, insignias, copyrights, trade secrets and combinations of the foregoing will always remain the property of EB. All of the information contained in the EB Platform is the property of EB and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. The EB Products and these Terms and Conditions relate only to access to the EB Platform and You are not granted a license to any software under these Terms and Conditions.
3. EB User Representations. By utilizing the EB Products You hereby represent, acknowledge and agree that:
(i) The EB Products are to be used only for providing You the ability to offer the services listed within these Terms and Conditions and may not be used for any other purpose;
(ii) The EB Products will not be linked, compiled or otherwise combined with any other programs;
(iii) While utilizing the EB Products, You or Your organization will be listed as the sender and You will not impersonate any other person or organization;
(iv) You will not modify, rent, release, lend, sublicense or otherwise redistribute the EB Products, in whole or in part, to any other person or entity;
(v) You will not create or permit others to create, by reverse engineering or otherwise, services similar to those offered by EB or any part thereof;
(vi) The EB Products will be used in compliance with the CAN-SPAM Act of 2003, will only be used for lawful purposes and You will not violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising) in connection with the EB Products;
(vii) While utilizing the EB Products, you will not send any content or any other text, pictures, sound, graphics, video and other data or any other materials that are listed in the Prohibited Content section of these Terms and Conditions;
(viii) You will not interfere with or disrupt the EB Platform, EB’s servers or EB’s networks connected to the EB Platform or any other website connected with your use of the EB Products; and
4. Product Deliver/Return Policy. The EB Products are delivered through a shipment contract. The risk of loss for any EB Products passes to you upon delivery to the carrier. You are responsible to file any claims directly with the carrier in the event the EB Products are lost, stolen or damaged. We will use the shipping address you provide upon your order. You may return all unopened and originally sealed EB Products within thirty (30) days of your purchase for any reason. We will not accept any returns for opened EB Products. We will only provide a refund after our receipt and inspection of the returned EB Product(s). If, in our sole discretion, we determine that the EB Products have been opened, unsealed or in any way tampered with, we will not issue a refund. For purposes of these Terms and Conditions, the date of your purchase shall be deemed the date we ship the product. We will not reimburse you for any shipping costs for shipping the product to you or for the return of the product.
5. Consult with a Veterinarian. Any information on the EB Website is for informational purposes only. In no way shall the information contained on the EB Website be deemed a substitute for obtaining a veterinarian’s advice on a particular issue and should not be considered veterinary advice in diagnosing or treating a health-related issue or disease. The EB Website does not recommend management and/or diagnosis relating to any particular disease or treatment of your pet. Never disregard or delay veterinary advice based upon the information you receive from the EB Website. You should consult with a veterinarian about interactions with the EB Products and any other products. The products sold through and claims made on the EB Website have not been evaluated by any government agency and are not approved to diagnose, treat, cure or prevent disease. Always check the product label and packaging prior to use. EB does not warrant the truth or accuracy of any information provided on the EB Website by any third party, including product reviews, or on any third party links located on the EB Website or otherwise.
6. Prohibited Content. The EB Products may not be used in connection with any person and/or organization that:
(i) Promotes any products/services in connection with illegal goods; illegal drugs; illegal drug contraband; drug paraphernalia; pornography or illicitly sexual services;
escort services; dating services; pirated computer programs; illegal firearms; instructions on how to assemble or otherwise make bombs, grenades or other weapons; gambling; and/or promoting violence of any kind;
(ii) Utilizes any material that exploits children, or otherwise exploits children under 18 years of age;
(iii) Utilizes any material that infringes on the intellectual property rights of any third party or any rights of publicity or privacy;
(iv) Utilizes any material that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing, grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content; and
(x) Utilizes any material that contains any viruses, Trojan horses, worms, trap doors, back doors, Easter eggs, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7. EB’s Anti-Spam Policy. While utilizing the EB Platform, You agree to refrain from: (i) sending any transmissions to any person or entity without receiving the prior consent of the person or entity; (ii) sending any unsolicited transmissions; and (iii) sending any transmissions to any person or entity who expresses their/its desire to discontinue receiving any communications. Any unauthorized use of EB’s computer systems is a violation of these Terms and certain federal and state laws, including without limitation, the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.), and, as such, may subject the sender and his or her agents to civil and criminal penalties.
8. Usernames and Passwords. You will be responsible for any and all transactions that take place by a user who gains access to the EB Platform and/or Your EB Products account utilizing your user name and password. EB will accept the instructions of any individual who claims to be authorized to direct changes to your account if that individual presents Your username and password or provides other accurate account information acceptable to EB, in its sole discretion. EB will not be responsible for the actions of any individuals who wrongfully gain access to your customer information utilizing your username and password or who otherwise wrongfully gain access to your account. In the event you become aware of any unauthorized use of Your account, You agree to notify EB immediately.
9. Promotions. You will have the option of opting in to receive special promotional items. Any EB promotions received as a result of your opt-in may not be redeemed for a cash equivalent or credit. The promotions may be terminated, canceled, changed, suspended or modified in EB’s sole and absolute discretion. EB may terminate, cancel, change, suspend or modify your participation in promotional program in the event you breach any of the covenants of these Terms and Conditions. Any decision made by EB shall be final and binding on all parties. Some of our promotional programs and special events may require additional payment.
10. Termination by EB/Reservation of Rights. EB does not pre-screen any individuals nor organizations or the Content provided by said individuals/organizations. However, EB reserves the right (but undertakes no duty) to do so and decide whether any person, organization or information utilized in connection with Your use of the EB Platform is appropriate and/or complies with these Terms and Conditions, violates any law(s), violates any agreements between EB and any third party and/or is otherwise inappropriate in EB’s sole discretion. EB may refuse to send any communication and/or terminate access to the EB Platform for posting or publishing any material in violation of these Terms and Conditions, violation of any law(s), violates any agreements between EB and any third party and/or is otherwise inappropriate for transmission in EB’s sole discretion, at any time and without prior notice. The determination of any violation shall be made by EB in its sole and absolute discretion. If EB terminates Your access to the EB Platform, EB may, in its sole and absolute discretion, remove and destroy any data and files stored by You on EB’s servers. EB expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) the EB Platform and the EB Products, without notice, when EB deems it necessary, in its sole and absolute discretion.
11. Indemnification. You hereby agree to indemnify EB, and its members, shareholders, officers, directors, employees, business partners, third-party suppliers and providers, licensors, distributors and agents and hold them harmless from and against any and all liabilities, claims, losses, damages, costs and expenses (including reasonable attorneys' fees) incurred by EB as a result of any claim made by a third party in connection with the EB Products. You shall defend at Your sole expense any such action and shall pay any costs, damages, settlement awards and attorneys' fees finally awarded against EB in such action which are directly attributable to such claim. By utilizing the EB Products, You hereby grant to EB a non-exclusive royalty-free, worldwide license to reproduce, distribute, store, transmit, publicly perform, publicly display, digitally perform, reproduce, and otherwise use the content You provide to EB in connection with the EB Products.
12. Warranty. EB does not warrant that the operation of the EB Platform or the EB Products will be uninterrupted or error-free, or that the EB Platform or EB Products will be immune from fraudulent intrusion and/or unauthorized use or disclosure. EB does not make any claims or warranties as to the results that may be obtained from utilizing the EB Products. You assume all responsibility for assuring the proper and lawful use of the EB Platform and EB Products and all liability for any improper or unlawful use of the EB Products and EB Platform. You assume all liability, which may arise in connection with any person or entity's use of the EB Products and EB Platform. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, EB OFFERS THE EB PRODUCTS AND THE EB PLATFORM “AS IS” WITH NO WARRANTIES OF ANY KIND. EB SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO LIMIT THE LIABILITY OF EB AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. Limitations of Liability. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT: (i) NEITHER EB, ITS MEMBERS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, BUSINESS PARTNERS, SUPPLIERS, PROVIDERS, LICENSORS, DISTRIBUTORS AND/OR AGENTS WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY OF THE FOLLOWING: SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND; LOST PROFITS OR DAMAGES RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS/SERVICES, FOR LOSS OF DATA OR RELEASE OF ANY DATA TO THIRD PARTIES; OR ANY OTHER DAMAGE TO INTANGIBLE PERSONAL PROPERTY, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF EB, ITS SUPPLIERS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) EB'S TOTAL LIABILITY TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNTS RECEIVED FROM YOU UNDER THIS AGREEMENT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. Remedies/Disclosure of Information. Notwithstanding anything in these Terms and Conditions to the contrary, all provisions of these Terms and Conditions will be specifically enforceable, and EB will be entitled to, in addition to other available remedies, an injunction or other equitable relief for breach of any provision of these Terms and Conditions. In addition, You acknowledge and agree that EB has the right to seek damages, including, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages, when the EB Products are utilized in violation of these Terms and Conditions. In the event that EB is required to respond to a third party or law enforcement subpoena that is related to your use of the EB Products, EB may require You to reimburse EB for its reasonable expenses associated with complying with such subpoena. Any provision of these Terms and Conditions that, by its nature should survive termination, will survive termination, including, without limitation, those concerning intellectual property, ownership, warranty, disclaimers and limitations of liability. EB may disclose any and all information it receives from You in the event (i) it is required by law; (ii) to protect and defend the rights of EB and/or any person or entity affiliated with EB; or (iii) incident to a corporate sale, merger, reorganization, dissolution, bankruptcy or similar event.
15. Miscellaneous. You and EB shall for all purposes be independent contractors. Under no circumstances shall either party be deemed, as a result of this Agreement, an employee, agent or representative of the other party, and neither party shall have authority to incur any obligations or make any representations, warranties or guaranties on behalf of the other. EB may assign its rights to any payments under these Terms and Conditions to one or more other persons/entities without your prior written consent. In the event that one or more of the provisions contained in these Terms and Conditions shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions contained in these Terms and Conditions, and such other provisions shall be given effect in accordance with the manifest intent hereof. These Terms and Conditions set forth the entire agreement and understanding between the parties as to the subject matter hereof and supersedes and merges all prior oral and written agreements, discussions and understandings between you and EB. All notices to be given to EB in connection with this Agreement shall be in writing and shall be sufficient if sent by certified or registered mail, return receipt requested with postage prepaid, addressed to Emmy’s Best, LLC, 825 Watters Creek Boulevard, Building M, Suite 250, Allen, Texas 75013, with a copy to: The Internicola Law Firm, P.C., Attn: Brian A. Lincer, Esq., 1000 South Avenue, Staten Island, New York 10314, or at such other address hereafter made known to the other party. All notices to EB User may be effectuated by e-mail message at any e-mail address previously provided to EB by EB User. EB User shall, at all times, maintain a valid e-mail address to receive system notifications, for billing purposes and other system alerts from EB. Any notice given as provided in this Agreement shall be deemed to have been given on the date of receipt by the party for which it is intended. Section headings are for purposes of convenience only and are not intended to affect the meaning or interpretation of these Terms and Conditions. These Terms and Conditions are made pursuant to, and shall be construed and enforced in accordance with, the laws of the State of New York and United States federal law, to the extent applicable, irrespective of the principal place of business, residence or domicile of the parties hereto, and without giving effect to otherwise applicable principles of conflicts of law. Any suit brought to enforce obligations hereunder shall only be brought in the courts, whether State or Federal, sitting in the County of New York, City and State of New York.
By accessing the EB Platform and/or utilizing the EB Services You agree and represent that (i) You have read and understand all of the provisions in these Terms and Conditions; (ii) that you are at least 18 years of age; and (iii) all of the information that You have provided to EB is true and accurate. In addition, by accessing the EB Platform and/or utilizing the EB Services, You authorize Emmy’s Best, LLC to charge the amount due to Emmy’s Best, LLC on the credit card provided by you.
If you have any questions, or if you require any additional information concerning these Terms and Conditions or the EB Platform, please contact EB by email at [email protected]
Copyright ©2017, Emmy’s Best, LLC All Rights Reserved.
EB TAC. Version.2017.08.30