DBA GENTLY SOAP
EFFECTIVE DATE: SEPTEMBER 28, 2023
PLEASE NOTE THAT, EXCEPT AS PROVIDED BELOW, THESE TERMS REQUIRE RESOLUTION OF DISPUTES THROUGH USE OF AN ARBITRATION SERVICE. YOU HEREBY AGREE THAT ALL DISPUTES ARISING FROM, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE SERVICES WILL BE RESOLVED IN ACCORDANCE WITH THE ARBITRATION AND GOVERNING LAW PROVISIONS SET FORTH IN SECTION 21 BELOW.
Gently offers the Service, including all information tools, services, goods, and products available, to you conditioned upon your acceptance of all terms, conditions, policies, and notices stated herein or incorporated by reference. Please read these Terms carefully before using our Service or making any transaction, order, or purchase. By making any transaction, order, or purchase or by visiting or otherwise using the Service in any manner, you acknowledge and accept without limitation or qualification, that you have read and understood these Terms and you agree to be bound by them.
- Modification. Gently reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. If we modify these Terms, we will either post a notification of the modification on our website or otherwise provide you with notice of the change. The date of the last modification will also be posted at the beginning of these Terms. It is your responsibility to check from time to time for updates. By continuing to access or use the Services, you are indicating that you agree to be bound by any modified Terms.
- Eligibility. The Services are intended solely for persons who are at least 18 years old. By using the Services, you represent and warrant that you are at least 18 years old. If you are not 18 or older, you may not use the Services. If you use the Services on behalf of a company, partnership, association, or other entity, you hereby represent and warrant that you have the capacity to enter into these Terms on behalf of the entity, or an authorized representative of the entity has agreed to bind the entity to these Terms.
- English Language. These Terms are written in the English language. We do not guarantee the accuracy of any translated versions of these Terms. Any translations are for your convenience only. To the extent that any translated versions of these Terms conflict with the English language version, the English language version of these Terms shall control.
- Online Store Terms. Our store is hosted by Shopify Inc (“Shopify”). Shopify provides us with the online e-commerce platform that allows us to sell our products and services to you. You acknowledge, agree, and consent to the terms of our Store Policies which are incorporated herein by reference and can be accessed and reviewed through the provided links. Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated. We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
- Acceptable Use. Gently hereby grants you permission to use the Services and, if you are a registered user, permission to access and use those aspects of the Services that are offered to registered users, provided such use is in compliance with these Terms, and you further specifically agree that your use will adhere to the following restrictions and obligations:
- You may only use the Services for personal and non-commercial use. If you wish to create an organizational or business account, please contact Gently at email@example.com;
- You shall not infringe, misappropriate, or violate Gently’s or any third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- You may not display, mirror, or frame the Service, or any individual element within the Service, Gently's name, any Gently trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Gently’s express written consent;
- You may only use the Services for lawful activity. It is your responsibility to comply with all applicable local, state, and federal laws and regulations. In addition, you may not use the Services in any manner that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- You may not interfere with or damage the Services, including, without limitation, through the use of viruses, bots, harmful code, denial-of-service attacks, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology;
- You may not copy, rip, or capture any content encountered on the Services. This includes bulk copying or "scraping" any portion of the website content using a bot or other tool;
- You may not use the Services to upload, transmit, or promote any material that constitutes junk mail, spam, or commercial offers;
- You may not use the Services to upload, transmit, or promote any material that infringes or violates the intellectual property rights or any other rights of anyone else;
- You may not decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services;
- You may not attempt to probe, scan, or test the vulnerability of any Gently system or network or breach any security or authentication measures; or
- Advocate, encourage, or assist any third party in doing any of the foregoing.
Any conduct by a user that in our discretion restricts or inhibits any other user from using or enjoying the Service is expressly prohibited.
- User Accounts. To register and become a member of our Services, you may sign up for an account, and select a password and username (“User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. If you would like us to terminate your account, please contact us at firstname.lastname@example.org. Upon receipt of your request, and except as set forth below, we will remove your account and your associated information from the Services within a reasonable time period. You may not transfer your account to anyone else without our prior written permission. You may also be allowed to create a Gently account by logging into your account with certain third-party platforms ("Third-Party Information Providers” including, but not limited to, ShopPay, Google Pay, Apple Pay, Facebook, Shopify, and Instagram). You may link your Gently account with a Third-Party Information Provider by either: (i) providing your Third-Party Information Provider account login information to us through the Services; or (ii) allowing us to access your Third-Party Information Provider. PLEASE NOTE THAT YOUR RELATIONSHIPS WITH THE THIRD-PARTY INFORMATION PROVIDERS ARE GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY INFORMATION PROVIDERS, AND THOSE AGREEMENTS WILL DETERMINE WHAT INFORMATION WE WILL BE ABLE TO ACCESS AND USE THROUGH THOSE THIRD-PARTY INFORMATION PROVIDERS. Your Gently account will be created for your use of the Services based on the personal information you provide us or that we obtain via a Third-Party Information Provider.
- Ownership and Intellectual Property Rights. The Service and all of its content, including without limitation all copyrights, patents, trademarks, service marks, and trade names, as well as logos, text, design, graphics, icons, images, audio clips, video clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof, and all other intellectual property (collectively, the “Gently Content”), are all proprietary and owned or controlled by Gently, our licensors, and certain other third parties. You acknowledge that as between you and Gently, the Services, products, and Gently Content, including all associated intellectual property rights, are the exclusive property of Gently, our licensors, and other third parties, and is protected by United States and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible. Conditioned upon your compliance with these Terms, Gently grants you a limited, non-exclusive, non-transferable license, to (i) access, view, and use the Services solely for your personal use and (ii) access and view any Gently Content to which you are permitted access. You have no right to sublicense the licensed rights granted in this section. You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, broadcast, or otherwise exploit the Services, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Gently or its licensors, except for the licenses and rights expressly granted in these Terms. Gently owns and uses several trademarks on the Service, including but not limited to: Gently, Gently Soap, Treasures of the Sun, Reign Cloud, Breathe, and Gardener Knauft’s, Gently’s trade dress, and the Gently logos and other marks. All rights reserved.
- Payment and Billing Information. By providing a credit card or other payment method for the purchase of our Services, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we (or our third-party payment processor) encounter in order to proceed with your Order. You acknowledge that the amount billed may vary due to promotional offers, changes in the Services, or changes in applicable taxes or other charges, and you authorize us (or our third-party payment processor) to charge your payment method for the corresponding amount.
- Pricing and Availability. All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. Prices may be adjusted at any time and for any reason (or no reason) and without providing you prior notice. Products or services are subject to availability, and we reserve the right to cancel all or part of the Services and to discontinue making certain Services available without prior notice.
- Feedback. We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Services (“Feedback”). You agree that Gently has the right, but not the obligation, to use such Feedback without any obligation to provide you credit, royalty payment, or ownership interest in the changes to the Services.
- Notices of Copyright Infringement. Gently respects copyright law and expects our users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”) of 1998, the text of which may be found on the U.S. Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf, Gently will respond to claims of copyright infringement committed using the Services that are reported to us, provided they meet the criteria below. If you are a copyright owner, or a designated agent thereof, please report alleged copyright infringements taking place on or through the Services by providing us the following information (the “Notice”):
- the identity of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by this Notice, a comprehensive list of the copyrighted works that you claim have been infringed;
- the material that you claim is infringing, and information reasonably sufficient to permit us to locate the material, including at a minimum, the URL of the link shown on the Services where such material may be found;
- your mailing address, telephone number, and, if available, email address;
- a statement that you have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
- a statement that the information in this Notice is accurate and, under penalty of perjury, that you are the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed; and
- your full legal name and your electronic or physical signature.
You may deliver this notice, with all items completed, to us, as follows:
189 Cobb Parkway N
Building B, Suite 1
Marietta, GA 30062
Upon receipt of the Notice as described above, Gently will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Services.
- Termination. Gently may immediately and without notice terminate these Terms and disable your access to the Services if Gently determines, in its sole discretion, that (a) you have materially breached these Terms; (b) you have violated applicable laws, regulations or third party rights; or (c) Gently believes, in good faith, that such action is needed to protect the safety or property of other users, Gently, or third parties. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
- Third Party Content. By using the Services, Gently may provide you with access to third party websites, information, and services, including but not limited to third party databases, networks, servers, software, programs, systems, directories, applications, or products. One such example is our third-party payment processor. You hereby acknowledge that Gently does not control such third-party websites and services, and cannot be held responsible for their content, operation, or use. Your use of those services is subject to their respective terms of service. Gently does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by such third-party websites and services. Gently disclaims any and all responsibility or liability for any harm resulting from your use of such third-party websites and services, and you hereby irrevocably waive any claim against Gently with respect to the content or operation of any such third-party websites and services.
Disclaimer of Warranties and Limitation of Liability.
THE SERVICE, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE OR PURCHASED THROUGH THE SERVICE ARE PROVIDED TO YOU "AS IS" WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE SERVICE AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE THROUGH THE SERVICE, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICE (OR ANY PART THEREOF) WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE, WILL BE COMPATIBLE WITH THE SERVICE, AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE AND SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO ACCESS AND USE THE SERVICE AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE SERVICE. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE.
WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THE SERVICE, INFORMATION GOODS, AND MATERIALS NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SERVICE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. FURTHER, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF THE SERVICE OR FROM ANY INFORMATION, PRODUCTS, OR MATERIALS ON THE SERVICE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE, GOODS, OR PRODUCTS IS TO STOP USING THE SERVICE, GOODS, OR PRODUCTS. OUR MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO US IN THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IF APPLICABLE LAW PROHIBITS THE LIMITATION OR EXCLUSION OF A PARTY’S LIABILITY WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE, FRAUD, OR ANY OTHER MATTER, THEN SUCH PARTY’S LIABILITY WILL NOT BE LIMITED OR EXCLUDED TO THE EXTENT OF SUCH PROHIBITION UNDER SUCH APPLICABLE LAW.
YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE SECTION 1542 OR ANY SIMILAR LAW IN ANOTHER JURISDICTION, THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS.
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE FOREGOING PARAGRAPHS APPLY REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR ANY OTHER LEGAL THEORY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Indemnification. To the fullest extent allowed by applicable law, you agree to indemnify and hold Gently, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
- Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Gently (a) via email (in each case to the address that you provide) or (b) by posting to the website.
- No Waiver. The failure of Gently to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
- Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Gently’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. Gently may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. Unless a person or entity is explicitly identified as a third-party beneficiary to these Terms, these Terms do not and are not intended to confer any rights or remedies upon any person or entity other than the parties.
- Severability. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
- Governing Law and Arbitration. These Terms are governed by and will be construed under the laws of the state of Georgia, U.S.A., without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Fulton County, Georgia, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in Fulton County, Georgia. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Entire Agreement. These Terms constitute the entire agreement between you and Gently regarding your use of the Services, and supersede all prior written or oral agreements.
SMS Text Messaging. You agree to receive recurring SMS/text messages from and on behalf of Gently through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders). We do not charge for SMS/text messages, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider. You may opt-out of the SMS/text messages at any time by clicking the unsubscribe link (where available) or texting the single keyword command “STOP”. You’ll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device unless initiated by you. For support, please email email@example.com. We may change any short code or telephone number we use to operate the messaging service at any time and will notify you of these changes. You acknowledge that any messages, including STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the messaging services with your new number. To the extent permitted by applicable law, you agree that Gently will not be liable for failed, delayed, or misdirected delivery of any information sent through the messaging services, any errors in such information, and/or any action you may or may not take in reliance on the information.
- California Notice. For California users, under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services at the California Department of Consumer Affairs may be contacted in writing at 1625 N. Marketing Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
- Notice Regarding Medical Advice. GENTLY DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THE WEBSITE OR AVAILABLE THROUGH THE SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE. THE SITE MATERIALS, SUCH AS TEXT, GRAPHICS, IMAGES, AND INFORMATION OBTAINED FROM THE SHITE ARE FOR INFORMATIONAL PURPOSES ONLY. THE SITE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT OR OTHER PROFESSIONAL SERVICES OR ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THE SERVICES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
Contact Us. If you have any questions about the Services, please do not hesitate to contact us at firstname.lastname@example.org.