Terms of Use
These Terms of Use (the “Terms”) are a binding contract between you and Merry. (“Merry”, “we”, “us”, and/or “our”), a Delaware corporation. These Terms set forth the terms and conditions regarding your access to and use of the Merry website at joinmerry.com (the “Site”), the iOS and/or Android Merry App (the “App”) and any other services offered as part of the Merry platform (collectively with the Site and App, the “Services”).
These Terms are updated and effective as of January 12, 2023
We refer to you (our App Users and Site visitors) collectively in these Terms using “you” and/or “your.” These Terms govern your use of the Services. You must be 18 years of age to use the Services unless you have the parental consent required by these Terms (see below). No one 13 years of age or younger may use the App under any circumstances.
You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Any use you make of the Services means that you agree to all of these Terms. These Terms will remain in effect, and a binding contractual obligation between you and Merry, while you use the Services, and will extend beyond your use of the Services as indicated below.
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 BELOW. YOU HAVE THIRTY (30) DAYS FOLLOWING THE LATER OF YOUR INITIAL ACCEPTANCE OF THESE TERMS OR YOUR FIRST USE OF OUR SERVICE TO OPT-OUT OF OUR ARBITRATION REQUIREMENT.
Key Definitions
Here are a few key definitions we use throughout these Terms of Service – please keep them in mind:
“Users” refers collectively to anyone who creates an App account.
“Media” means upcoming plans, photos, videos, and/or other content capable of being uploaded to the app. The capitalized term “Content” is used in these Terms to refer to Media that you, or someone whom you are legally responsible for under these Terms, actually uploaded to the Services.
“Comments” are text/image/video comments added to and/or associated with upcoming plans and activities. To the extent Comments include other User-generated content, such as ideas, concepts, techniques, data, or other information contained in any of these, such user-generated content is a part of the “Comment” for purposes of these terms.
Users can, but are not required to use “SSO” – single sign-on authentication frameworks, such as those offered by Google or Facebook, which are operated by third parties and may be used, upon your election, to help you more easily log into the Services. If you choose to use SSO, you consent to Merry using it to authenticate you
Privacy Policy
Merry’s Privacy Policy (as updated from time to time) explains our data handling, privacy, and security practices in language we hope will be widely accessible, and all references in these Terms to the “Privacy Policy” refer to the latest version of this document. However, these Terms alone set forth your legal obligations with respect to your access to our Services and constitute your contract with Merry. In the event of a conflict between the interpretation of our Privacy Policy and these Terms, these Terms will control. You agree that you understand and accept the activities described in our Privacy Policy or any subsequent privacy and data handling practices when you use the App.
Eligibility for the Services
Any person over 18 may use the Services for their own personal, noncommercial purposes in accordance with these Terms and the Acceptable Use Guidelines below, provided they accept and agree to these Terms.
The Services are intended solely for persons who are at least 13 years old. By using the Services you represent and warrant that you are at least 13 years old. If you are not 13 or older, you may not use the Services under any circumstances.
Only real individual humans using the App for personal purposes may create an account, as further explained in our Acceptable Use Guidelines below.
To be a User, you agree to:
- sign up for an account, and select a password and display name, which can be anything you choose (“Display Name”).
- provide us with accurate, complete, and updated registration information about yourself.
- If you use SSO, use only SSO credentials for accounts you have all necessary rights to use.
- select a Display Name that does not misrepresent your identity as that of another user or identifiable individual.
- use a profile photo that meets our Acceptable Use Guidelines.
Using our App
At any time, any User may:
- terminate their account, provided we may take a reasonable time to remove your personal information from our systems after receiving notice that you wish to terminate;
- Submit Feedback (defined below)
Merry grants to you a limited, personal, revocable, nonexclusive, non-assignable, non-sublicensable right to access, through a generally available web browser or mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of Merry), view information and use the Services that we provide in accordance with these Terms.
Any other use of the Services contrary to our mission and purpose is strictly prohibited and a material breach of these Terms – for example, seeking to connect to someone you do not know or trust using the App or using information gathered from the Services commercially without Merry’s express, written consent. We reserve all rights not expressly granted in these Terms, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Services.
If at any point you are concerned the privacy or security of your personal information and/or Content may have been compromised in the App, you agree to first email developer@joinmerry.com with a description of your concerns to provide us with a reasonable opportunity to investigate, respond to, and clarify those concerns. You and Merry agree to attempt informal dispute resolution, as detailed in these Terms, before you make any public filing or accusation of wrongdoing related to such dispute.
Termination
Certain anonymous or anonymized information relating to your past access to the Services will be retained by Merry after termination of your account, provided that any such records will be de-identified and your personal information will not be present in those records. Please refer to our Privacy Policy for more information about account removal.
Merry may immediately and without notice terminate these Terms with you and disable your access to the Services if Merry determines, in its sole discretion, that (a) you have materially breached these Terms; (b) you have violated applicable laws, regulations or third-party rights; (c) such action is needed to protect the safety or property of, or present serious harm to, other users, Merry, or third parties; and/or (d) we have reason to believe you have violated these Terms. If we intend to remove your account in accordance with this section, we will try to provide advance notice to you prior to our removal of your account, but we need not provide notice if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Merry to provide such notice.
Provisions that, by their nature, should survive termination of these Terms shall survive any termination of your account. As an example and not a limitation, any obligation you have to pay us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us are provisions that will survive the termination of your account and/or these Terms.
Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You agree that Merry has the right, but not the obligation, to copy, store, publish, display, and use such Feedback in any manner without any obligation to provide you credit, royalty payment, or ownership interest in the changes to the Service.
You can send any Feedback you may have to developer@joinmerry.com.
Disclaimer of Warranties; Disputes with Other Users
YOUR ACCESS TO AND USE OF THE SERVICES OR ANY CONTRIBUTIONS ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND Merry, ITS AFFILIATES AND ITS THIRD PARTY SERVICE PROVIDERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, MERCHANTABILITY, NON-INFRINGEMENT, SECURITY, SAFETY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM. Merry, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES OR OTHER HARMFUL SOFTWARE CODE WILL BE TRANSMITTED THROUGH THE SERVICES.
Merry makes no warranties or representations regarding the Services whatsoever, and specifically disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the Merry or through the Services, will create any warranty or representation not expressly made herein.
Because some states do not permit disclaimer of implied warranties, you may have additional consumer rights under your local laws.
If there is a dispute between Users of our Services, or between Users and any third party, you agree that Merry is under no obligation to become involved. In the event that you have a dispute with one or more other Users, you hereby release Merry, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
Limitation of Liability
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL Merry (OR ITS LICENSORS, PARTNERS, AGENTS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (C) ANY CONTENT OBTAINED FROM THE SERVICES; OR (D) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF Merry, EXCEED THE LESSER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO Merry IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. Merry SHALL HAVE NO LIABILITY FOR ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT Merry HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
THESE LIMITATIONS OF LIABILITY ARE A MANDATORY CONDITION OF OUR OFFERING FREE OR SUBSCRIPTION-BASED SERVICES TO YOU AT THEIR CURRENT PRICE.
Indemnity
Merry Indemnity
We will defend Users from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under these Terms infringes or misappropriates a third party’s intellectual property rights (a “Claim Against User”), and will indemnify User for all reasonable attorney’s fees incurred and damages and other costs finally awarded against User in connection with or as a result of, and for amounts paid by User under a settlement we approve of in connection with, a Claim Against User; provided, however, that we will have no liability if a Claim Against User arises from (a) User Content or Third party products and services; and (b) any modification, combination or development of the Services that is not performed by Merry. User must provide us with prompt written notice of any Claim Against User and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and User’s exclusive remedy against Merry and its officers, agents, employees, and representatives (collectively, “Merry Parties”) for any Claim Against User.
Users’ Indemnification of Merry
User will defend Merry Parties from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to User’s or any of its Permissible Minor Users’ violation of these Terms (a “Claim Against Us”), and will indemnify the Merry Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Merry Party in connection with or as a result of, and for amounts paid by a Merry Party under a settlement User approves of in connection with, a Claim Against Us. We must provide User with prompt written notice of any Claim Against Us and allow User the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting User’s defense and settlement of such matter. This section states your sole liability with respect to, and the Merry Parties’ exclusive remedy against User for, any Claim Against Us.
Limitations on Indemnifications
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
General
Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Merry (a) via email (in each case to the address that you provide) or (b) by posting to the Site, App, or other Merry Service.
No Waiver. The failure of Merry 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 Merry’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. Merry 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. These Terms do not and are not intended to confer any rights or remedies upon any person 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.
Arbitration. These Terms are governed by and will be construed under the laws of the State of Delaware, 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 by arbitration on an individual basis in Dover, Delaware, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Service, 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 Dover, Delaware.
If you do not agree to the terms of this Arbitration Provision, you may opt-out of Arbitration within thirty (30) days of signing this Agreement by notifying Merry in writing of your intention to opt-out of the Arbitration Provision. This notice must contain (1) your first and last name, (2) your Display Name, (3)the email you used to sign up for the Services, (4) the effective date of your notice, and (5) a clear statement of your intention to opt out, such as “I wish to opt-out of the Arbitration provision in the Merry Terms of Service.” Your opt-out request must be sent either via email from an account carrying the same name and email address as the account subject of the opt-out request to developer@joinmerry.com
Entire Agreement. These Terms constitute the entire agreement between you and Merry regarding your use of Merry’s Services, and supersede all prior written or oral agreements. Additional terms may apply to certain products or Services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Contact Us. If you have questions about these Terms, or about our use of your information, please contact us at developer@joinmerry.com.
Modification. Merry reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. If we materially modify these Terms, as determined by Merry in its sole discretion, 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 Service, you are indicating that you agree to be bound by any modified Terms.