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Mulberry Terms of Use Agreement

Last Updated: July 28, 2021.

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY.  THIS WEBSITE AND ITS SUBDOMAINS, (COLLECTIVELY, THE “WEBSITE”), THE INFORMATION ON THE WEBSITE, THE CUSTOMER PLATFORM (AS DEFINED IN SECTION 2.1) AND ALL SERVICES, RESOURCES, AND SOFTWARE (AS DEFINED IN SECTION 1.1), AVAILABLE OR ENABLED VIA THE WEBSITE OR CUSTOMER PLATFORM (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), ARE CONTROLLED BY MULBERRY TECHNOLOGY INC., (“COMPANY” OR “WE”).  THESE TERMS OF USE ALONG WITH ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”), GOVERN YOUR ACCESS TO AND USE OF THE SERVICES. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT.  THE TERM “YOU” REFERS TO THE INDIVIDUAL WHO ACCESSES OR USES ANY OF THE SERVICES.  IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.

PLEASE BE AWARE THAT SECTION 13 (DISPUTE RESOLUTION) OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND COMPANY TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST YOU AND COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.  

PLEASE BE AWARE THAT SECTION 1.4 (COMPANY COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.

PLEASE NOTE THAT THE TERMS OF USE IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME.  WHEN CHANGES ARE MADE, COMPANY WILL MAKE A COPY OF THE UPDATED TERMS OF USE AVAILABLE AT THE WEBSITE AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE.  IF WE MAKE ANY MATERIAL CHANGES TO THE TERMS OF USE, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE WEBSITE AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT.  ANY CHANGES TO THE TERMS OF USE WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SERVICES AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF COMPANY PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH COMPANY MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED.  IF YOU DO NOT AGREE TO THE UPDATED TERMS OF USE, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED TERMS OF USE.  OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED TERMS OF USE CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED TERMS OF USE.  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS OF USE. YOU AGREE THAT COMPANY’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONIDERATION FOR THE CHANGES IN THE UPDATED TERMS OF USE. 

    1. USE OF THE SERVICES.  The Services, and the information and content available on them, are protected by applicable intellectual property laws.  
      1. Company Software.  Use of any software and associated documentation,  that is made available via the Services (“Software”) is governed by the  Agreement.  Subject to your compliance with the Agreement, Company grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement.  Some Software may be offered under open source licenses that we will make available to you upon your request. There may be provisions in the open source licenses that expressly override some of these terms.
      2. Updates.  You understand that the Services are evolving.  As a result, Company may require you to accept updates to the Services.  You acknowledge and agree that Company may update the Services with or without notifying you.  You may need to update third-party software from time to time in order to use the Services.
      3. Certain Restrictions.  The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement.  Company, its suppliers and service providers reserve all rights not granted in the Agreement.  
      4. Company Communications.  By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications.  You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems.  Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning the Company and industry developments.  Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send.  
    2. ACCOUNT REGISTRATION.
      1. Customer Platform. Company provides, through its platform made available through one or more of the Services (the “Customer Platform”),  extended warranty service contracts (a “Protection Plan”) through an administrator who underwrites and administers such Protection Plans (an “Administrator”) to consumers who purchase goods, including appliances, furniture and electronics, from e-commerce platforms and who purchase a Protection Plan for such goods directly with Company.
      2. Registering Your Account.  In order to access certain features of the Services you may be required to become a Registered User.  For purposes of the Agreement, a “Registered User” is a user who has registered an account with Company through one or more of the Services (“Account”).  
      3. Registration Data.  In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use.  You may not share your Account login or password with anyone, and you agree to (y) notify Company immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account per platform at any given time.  Company reserves the right to remove or reclaim any Account, including usernames, at any time and for any reason.  You agree not to create an Account or use the Services if you have been previously removed by Company, or if you have been previously banned from any of the Services.
      4. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company. 
      5. Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Services.  You are solely responsible for any fees that you incur when accessing the Services.  
    3. RESPONSIBILITY FOR CONTENT.
      1. Types of Content.  ”Content” means any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services.  You acknowledge that all Content is the sole responsibility of the party from whom such Content originated.  This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Company, are similarly responsible for all Content that you and they make available through the Services (“User Content”).
      2. No Obligation to Pre-Screen Content.  You acknowledge that Company has no obligation to pre-screen User Content, although Company reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.  In the event that Company pre-screens, refuses or removes any of Your Content, you acknowledge that Company will do so for Company’s benefit, not yours.  
      3. Storage.  Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content.  Company has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content; the failure to store, transmit or receive transmission of any User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content.  You are solely responsible for choosing the appropriate level of access to Your Content.  If you do not so choose, the Services may default to the most permissive setting.  You agree that Company retains the right to create reasonable limits on Company’s use and storage of User Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by Company in its sole discretion. 
    4. OWNERSHIP.
      1. Services.  Except with respect to Your Content and other User Content, you agree that Company and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Company software), and all modifications thereto and all intellectual property rights therein.  You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services. Subject to your payment of all due and payable fees, during the Term, Company grants to you a limited, non-exclusive, revocable, non-sublicensable, non-transferable, worldwide right and license to access and use the Services. Except for the license expressly granted in this section nothing herein shall be construed as granting to you any ownership, license or any other rights of any nature under this Agreement. 
      2. Trademarks. Company’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Company and may not be used without permission in connection with your, or any third-party, products or services.  Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
      3. Your Content.  Company does not claim ownership of Your Content.  However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.  
      4. License to Your Content.  You grant Company a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users.  Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.  You agree that you, not Company, are responsible for all of Your Content.  You may not post a photograph of another person without that person’s permission.
      5. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit Company to identify you by your username (which may be a pseudonym) as the contributor of Your Content.
      6. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Company’s business.
    5. USER CONDUCT.   You shall not (and shall not permit any third party) either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Company’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Company; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Company Properties.
    6. FEES AND PURCHASE TERMS.
      1. General Purpose of Agreement: Sale of Service, not Software.  The purpose of the Agreement is for you to secure access to the Services.  In no way are the fees paid by you under the Agreement considered payment for the sale, license, or use of Company’s Software, and, furthermore, any use of Company’s Software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
      2. Payment.  You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services.  You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (each, a “Payment Provider”) as a condition to signing up for the Services.  Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities.  By providing Company with your Payment Provider account number and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges as they become due and payable and that no additional notice or consent is required.  You agree to immediately notify Company of any change in your billing address or the Payment Provider account used for payment hereunder.  Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. 
      3. Order Acceptance of Protection Plan.  Your receipt of an electronic or other form of order confirmation does not signify Company’s acceptance of your order, nor does it constitute confirmation of our offer to sell.  Company reserves the right at any time after receipt of your order to accept or decline your order for any reason.  Your ordered Protection Plan will be deemed accepted by Company upon written confirmation from Company.  We may require additional verifications or information before accepting any order.  All sales of Protection Plans are subject to Company’s then-current return policies, as posted on the Services.
      4. Taxes.  You are responsible for any tax, duty, custom or other fee of any nature, other than taxes on Company’s income, imposed on your use of the Services or your payment of any fees to Company by any federal, state, local or foreign government authority. You are responsible for all applicable Sales Tax payments related to Company Services and required sales tax filings, penalties or interest with the appropriate taxing authorities.  Upon Company’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
      5. Withholding Taxes.  You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
    7. INDEMNIFICATIONYou agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations.  Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Company in asserting any available defenses.  Without limitation of the foregoing, if Company receives a subpoena or similar requirement to disclose Your Content issued by any court or governmental authority, and Company are not a party to the proceeding in question, you will reimburse Company for our reasonable costs and expenses of complying with such subpoena, including time spent by Company’s personnel and attorneys at time and materials rates. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
    8. WARRANTIES; DISCLAIMER OF WARRANTIES AND CONDITIONS.
      1. Representation and Warranties. You represent and warrant to Company that: (i) as a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law; (ii) this Agreement is and shall remain a valid and binding obligation upon you, enforceable in accordance with its terms; (iii) you are under no contractual or other obligation or restriction that conflicts with or is inconsistent with its execution or performance of this Agreement; (iv) you shall not enter into any agreement, either written or oral, that would conflict with its obligations under this Agreement and (v) that you own all proprietary rights in Your Content or, with respect to any of Your Content you do not own, that you have the full authority and right to create, upload, store and/or transmit Your Content, and to grant the licenses and rights you have granted in this Agreement, and that your creation, uploading, storage and/or transmission of Your Content.
      2. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.  This Section 8 (Warranties; Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased through the Services.  If for any reason you are not satisfied with a purchase you make through the Services, please contact Company at https://www.getmulberry.com/contact. 
        1. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
        2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
      3. No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY SELLERS, OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
      4. Third-Party Materials.  As a part of the Services, you may have access to materials that are hosted by another party.  You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
    9. LIMITATION OF LIABILITY.
      1. Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY.  THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. 
      2. Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE THREE(3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
      3. User Content.  EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY, COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
      4. Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
      5. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
    10. MONITORING AND ENFORCEMENT.  
      1. Company reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Company; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (d) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
      2. If Company becomes aware of any possible violations by you of the Agreement, Company reserves the right to investigate such violations.  If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Company’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Company, its Registered Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate. 
    11. TERM AND TERMINATION.  
      1. Term.  The Agreement commences on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services or any Protection Plan is in effect, unless earlier terminated in accordance with the Agreement.
      2. Termination of Services by Company.     Company may terminate this Agreement (in whole or in part), including your access and use of any Services, if you materially breach this Agreement and fail to cure such breach within fourteen (14) days after receiving written notice of such breach.  If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Company is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account. 
      3. Termination of Services by You.  You may terminate this Agreement if Company materially breaches this Agreement and fail to cure such breach within fourteen (14) days after receiving written notice of such breach.  Your notice should be sent, in writing, to Company’s address set forth below.
      4. Cancellation of a Protection Plan. In the event you wish to cancel a Protection Plan in accordance with its terms and conditions (and within the timeframe allowed in such Protection Plan) and applicable law, you shall request a cancellation by promptly notifying Company in writing of such cancellation along with the applicable cancellation data. Company will submit such cancellation data to Administrator, obtain a refund from the Administrator, and provide the refund to you. Unless the Protection Plan specifies different cancellation terms, you will be refunded by Company within thirty (30) days after the request for cancellation. If a Protection Plan allows for cancellation more than thirty (30) days after the purchase date of the Protection Plan is cancelled after such thirty (30) day period, the applicable refund may be pro-rated in accordance with the term of the Protection Plan.  
      5. Effect of Termination.  Termination or expiration of this Agreement (in whole or in part) includes your immediate removal of access to such applicable Services and barring of further use of applicable Services.  Termination or expiration of the Agreement also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  You understand that any termination or expiration of Services may involve deletion of Your Content associated therewith from the Customer Platform.  Company will not have any liability whatsoever to you for any suspension, expiration or termination, including for deletion of Your Content.  All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. Within forty-five (45) calendar days after termination or expiration of this Agreement, you shall promptly account for and pay to Company all amounts due under this Agreement.
      6. No Subsequent Registration.  If your Account with, or ability to access, the Services or any other Company community, is discontinued by Company due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated.  In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
    12. INTERNATIONAL USERS.  Company is based in the United States. Company provides the Service for use only by persons located in the United States. Company make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
    13. DISPUTE RESOLUTION.  Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully.  It requires U.S. users to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
      1. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights.  This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.  
      2. Arbitration Rules and Forum.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to Jordan Garner at help@mulberry.com.  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.  Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you.  In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. 
        You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 
      3. Authority of Arbitrator.  The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Company.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.  
      4. Waiver of Jury Trial.  YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Company are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Applicability of Arbitration Agreement) above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  
      5. Waiver of Class or Other Non-Individualized Relief.  ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York.  All other disputes, claims, or requests for relief shall be arbitrated.  
      6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: help@mulberry.com, within thirty (30) days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.    If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
      7. Severability. Except as provided in Section 13.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
      8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
      9. Modification.  Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at: help@mulberry.com.
    14. THIRD-PARTY SERVICES.
      1. Third Party Sellers.  Certain Services are used to facilitate the Protection Plans with respect to the purchase and sale of products from other persons not affiliated with Company (“Seller(s)”).  All matters concerning the products of a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller.  Company makes no warranties or representations whatsoever with regard to any products or services provided by Sellers.  You will not consider Company, nor will Company be construed as, a party to such transactions, whether or not Company may have received some form of revenue or other remuneration in connection with the transaction or be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction.
      2. Third Party Service Provider.  The Company uses  third party service providers for payment services (e.g., card acceptance, merchant settlement, and related services) (each a “Payment Processor”).  By buying any Protection Plan, you agree to be bound by the applicable Payment Processor’s terms of use and hereby consent and authorize the Company and Payment Processor to share any information and payment instructions you provide with one or more Payment Processor(s) to the minimum extent required to complete your transactions.  
      3. Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”).  When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Company.  Company is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads.  Company provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith.  You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and our policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. 
    15. GENERAL PROVISIONS.
      1. ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT. 
      2. Exclusive Venue.  To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York County, New York.
      3. Electronic Communications.  The communications between you and Company may take place via electronic means, whether you visit the Services or send Company e-mails, or whether Company posts notices on the Services or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company 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, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
      4. Assignment.  The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
      5. Force Majeure.  Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 
      6. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact us at: help@mulberry.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
      7. Notice.  Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address.  In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Company at help@mulberry.com.  Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
      8. Waiver.  Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
      9. Severability.  If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
      10. Export Control.  You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws.  In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you 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. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
      11. Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
      12. Privacy Policy. Company operates the Service under this Privacy Policy published at https://www.getmulberry.com/privacy-policy (the "Privacy Policy"), which is hereby incorporated into this Agreement. You shall comply with the Privacy Policy.
      13. Entire Agreement.  The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.