Vivrelle, LLC Membership Agreement
This Vivrelle Membership Agreement (this “Agreement”) is entered by and between Vivrelle, LLC (“VIVRELLE”) and you, the member of the VIVRELLE Subscription, as defined below (“you”), as of the date you either agree to this Agreement or become a member of the Subscription (“Effective Date”).
PLEASE CAREFULLY REVIEW THE TERMS OF THIS AGREEMENT BEFORE AGREEING TO IT, AND BEFORE BECOMING A MEMBER. THIS IS A LEGALLY BINDING AGREEMENT AND BY SIGNING UP FOR A SUBSCRIPTION, YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT.
IN APPLYING FOR A VIVRELLE SUBSCRIPTION, VIVRELLE MAY ITSELF CONDUCT, OR HIRE A THIRD PARTY TO CONDUCT, A BACKGROUND CHECK. YOU AGREE TO THE BACKGROUND CHECK AND AGREE THAT VIVRELLE WILL CONDUCT THE BACKGROUND CHECK BEFORE AGREEING TO YOUR MEMBERSHIP.
In consideration of your subscription to the VIVRELLE Subscription, you agree to the terms of this Agreement. You acknowledge that your credit card will be charged automatically for as long as you are a member of the Subscription, and you agree to such charges. If you have any questions about the automatic credit card charges associated with the Subscription, please contact us at firstname.lastname@example.org.
The services covered by this Agreement are any services provided by or on behalf of VIVRELLE, including, but not limited to, VIVRELLE’s membership subscription rental of accessories and clothing, including handbags and jewelry (the “Subscription”).
As detailed below, once you have completed and submitted an application to be a member of the Subscription (“Application”), VIVRELLE will review your Application. In its sole and absolute discretion, VIVRELLE will decide whether to offer you membership to the Subscription (“Member” or “Membership”) based on your Application. If you are granted Membership, you will start to pay the Fees, as discussed below, for the Term of this Agreement.
VIVRELLE rents and/or sells handbags, jewelry, clothing, and other accessories, as determined by VIVRELLE in its sole discretion (“Accessories”) to you as a Member, provided you comply with all of the terms and conditions of this Agreement. In addition to the remainder of the terms outlined in this Agreement, you agree:
-that you are 18 or over;
-that you will be charged for your Membership;
-that your credit card will automatically be charged, even if you have not rented an Accessory during that month;
-that you are responsible for ensuring that the Accessories are well cared for while in your possession;
-that Vivrelle will conduct or have conducted a background check;
-that the information provided in your Application is truthful and accurate and complete;
-if VIVRELLE has any reason to believe that a returned Accessory is not the same item as an Accessory that was shipped to you, VIVRELLE has the right to charge you, and automatically charge your credit card, for any re-authentication costs; and
-that you will advise VIVRELLE of any issues immediately, including any damaged or lost Accessories.
The foregoing recitals form a part of the Agreement, and you and VIVRELLE agree to this Agreement in consideration of your compliance with the terms of this Agreement and in exchange for VIVRELLE’s rental of the Accessories to you.
1. Application Process. In order to become a Member, you first must complete the Application. The Application is hosted on VIVRELLE’s website, at www.vivrelle.com. Please accurately and completely complete the Application. By submitting the Application, you acknowledge that VIVRELLE will use the Application and the information in the Application, to determine whether to offer you Membership. You represent and warrant that the information in the Application is accurate and you understand that VIVRELLE is relying on the Application. If VIVRELLE learns, or has reason to believe, that the information in the Application is false, incomplete, or misleading in any way, VIVRELLE may terminate this Agreement, or suspend your Subscription. If VIVRELLE approves your Application, you may become a Member, subject to the terms of this Agreement.
2. Membership Generally.
(a) Generally. The Membership is a monthly membership. You will pay for the Membership each Month. During the Term of your Membership, you will be able to rent one or more Accessory, depending on your Level. You must pay the Fee for each Month of the Term.
(b) Month. A “Month” is each 30-day period of the Term, commencing on the Effective Date, and continuing for 30 days, and each consecutive 30 period thereafter. By way of example, if your Subscription starts on May 15, the first Month of your Term will be May 15 to June 14, and the second Month will start on June 15. Each Month will always start on the same numerical calendar day.
(c) Start Day. A “Start Day” is the numerical day on which your Subscription starts, and each monthly anniversary thereof. By way of example, if your Subscription starts on May 15, your Start Day will be the 15th day of every calendar month.
(d) Levels. There are three membership levels, with three corresponding Fees, and different rental privileges, as described below (each a “Level”).
(e) Sign Up. If your Application is approved and you become a Member, you will create an online account through the VIVRELLE website (“Account”). Please visit www.vivrelle.com to create your Account.
(f) Accessories. You can access the then current inventory of Accessories through your Account. VIVRELLE MAKES NO REPRESENTATIONS OR GUARANTEES WITH REGARD TO THE INVENTORY OF ACCESSORIES AT ANY TIME, NOR THE AVAILABILITY OF ONE OF MORE ACCESSORIES. Once you select an Accessory to rent, you can finalize the rental through your Account, subject to the terms of this Agreement. Each Accessory you select to rent is a “Selected Accessory”, once VIVRELLE confirms that the requested Accessory is available, including available at your Level.
(g) Shipping. A Selected Accessory will be shipped to the mailing address on file through your Account. Please ensure that the mailing information is correct and current at all times. Selected Accessories will be shipped via the carrier of VIVRELLE’s choice. Selected Accessories will be shipped with a signature requirement for delivery.
(h) Returns. Each Selected Accessory will be mailed with packaging of VIVRELLE’s choice as detailed below, as well as mailing materials to return the Selected Accessory back to VIVRELLE, as detailed below.
(i) Rental Period. When you receive a Selected Accessory, you may return the Selected Accessory as soon as you want or keep it for as long as you want during the Term, subject to the terms of this Agreement. The time you have a Selected Accessory is the “Rental Period”.
(j) Number of Accessories. You may have one Selected Accessory at a time, unless you are a Couture Plus member, in which case you may have two Selected Accessories at a time, subject to the below.
(k) One Time Termination. Notwithstanding anything herein to the contrary, within three (3) days of receipt of your first Selected Accessory only, you may terminate this Agreement for any reason or no reason. If you elect to terminate under this Section, you must log in to your Account and terminate your Account within three days of receipt of first Selected Accessory and return the Selected Accessory. Your account will not be terminated if you do not return the Selected Accessory.
(l) Freeze. You may freeze your Membership after the Initial Term for $6 per Month. You may freeze your Membership up to three Months per twelve-month period.
(a) Generally. The Accessories are the property of VIVRELLE, and you acknowledge and agree that you are renting the Accessories only, and you do not have any ownership right in or to the Accessories, unless you purchase the Accessory, as set forth herein. Not all Accessories are available at all levels.
(b) Condition on Receipt. The condition of Accessories when you receive them may vary. Some Accessories will be brand new when you receive them, some Accessories may be gently used, and some Accessories may be vintage pieces that show signs of wear and tear. In the event an Accessory arrives to you in a substandard condition, please contact us immediately at email@example.com.
(c) Condition of Accessories. The Accessories must be maintained in good condition and returned to VIVRELLE in good condition. Please be aware that VIVRELLE will inspect all Selected Accessories and you may be charged for any excessive damage or harm to the Selected Accessories.
(d) Timing. You may rent one Accessory a Month during the Term, provided you have returned any other Selected Accessories. You may keep an Accessory for longer than one Month, but you may not rent more than one Accessory each Month.
(e) Rental Process.
(i) Accessories may not be available at all times, and VIVRELLE does not guarantee that Accessories will be available for rental at the time/place you desire.
(ii) In order to rent Accessories, the information you input and provide to VIVRELLE must be true and accurate.
(iii) Once you have selected an Accessory, subject to availability, VIVRELLE will send you an email with confirmation of shipment of the Selected Accessory. No rental requests are confirmed unless and until you receive an email confirmation that the Selected Accessory has shipped.
(iv) You may not rent another Accessory until VIVRELLE receives you returned Selected Accessory. Once you return a Selected Accessory, and VIVRELLE processes the return, your rental window will open, and you may rent another Accessory.
(v) If you select a new Selected Accessory close to the next Month’s Start Date, VIVRELLE has the right to delay shipment of the Selected Accessory until after you have paid the Fee for that Month.
(f) Returns. Unless you purchase an Accessory, you must, at the end of the Rental Period, return the Accessory, in good condition. If you do not return an Accessory, or if VIVRELLE has reason to believe you will not return an Accessory, VIVRELLE may charge you the retail price of the Accessory. All determinations as to the retail price will be made in VIVRELLE’s sole discretion.
(g) Returned Items. If VIVELLE has any reason to believe that an item returned to VIVRELLE at the end of the Rental Period is not the same Accessory that was shipped to you by VIVRELLE, VIVRELLE may expend costs to re-authenticate the returned item. You will be responsible for any such costs, and VIVRELLE may charge your credit automatically for such costs. If the item as returned is not the same item as shipped to you, the Accessory will be treated as lost without coverage.
(h) Limited to You. You are the only renter of the Accessories, and you are the only person that is authorized to use the Accessories. You will not allow any third party to use the Accessories during your Rental Period.
(i) Personal Use Only. Your rights under this Agreement are limited to your personal, non-commercial use. You may not rent the Accessories to any third party, nor charge third parties for use of the Accessories.
(j) Communication with VIVRELLE. You agree that you will report any problem with the Accessories, including but not limited to, damage, Accessories or lost Accessories to VIVRELLE at firstname.lastname@example.org immediately after you have, as necessary, contacted local emergency services or police. PLEASE BE CAREFUL WITH THE ACCESSORIES – YOU ARE RESPONSIBLE FOR THE ACCESSORIES DURING THE TIME YOU RENT THE ACCESSORIES, INCLUDING IF IT IS LOST OR STOLEN, SUBJECT TO THE COVERAGE PROVISIONS HEREIN.
(k) Lost or Stolen Accessories. All decisions as to whether an Accessory is lost/stolen are to be made by VIVRELLE, in VIVRELLE’s sole and absolute discretion. If VIVRELLE believes that an Accessory is lost/stolen, the process described herein related to coverage will apply. VIVRELLE shall have the right, but not the obligation, to take any action in connection with the recovery of lost/stolen Accessories.
(l) Charges for Damaged Selected Accessories. If you return a Selected Accessory with excessive or abusive damage exceeding normal wear and tear, as determined by VIVRELLE in its sole discretion, you agree that VIVRELLE may charge your Card and collect the full retail price for such Selected Accessory. All determinations as to the retail value will be made at VIVRELLE’s sole discretion. You are also responsible in the event of a theft or loss of a Selected Accessory.
(m) Packaging. The Selected Accessories will be shipped to you in packaging selected by VIVRELLE (“Packaging”). The Packaging may be different for different Selected Accessories. All Packaging must be returned with the Selected Accessories. All references to Selected Accessories shall include the Packaging.
(a) Generally. There are three Membership Levels. Not all Accessories are available at all Levels.
(i) Classique. You may rent one Selected Accessory per month from the Classique closet. The Classique closet includes Accessories that have a retail value of less than $4,000. You may not rent another Selected Accessory until you have returned any other Selected Accessories in your possession. You may only ever have one Selected Accessory.
(ii) Couture. You may rent one Selected Accessory per month from either the Classique closet or the Couture closet. The Couture closet includes Accessories that have a retail value of more than $4,000. You may not rent another Selected Accessory until you have returned any other Selected Accessories in your possession. You may only ever have one Selected Accessory.
(iii) Couture Plus. You may rent two Selected Accessories per month, one of which may be from the Couture closet. You may not rent another Selected Accessory until you have returned at least one Selected Accessory. You may only ever have two Selected Accessories.
(b) Selecting Your Level. When you complete your Account and commence your Subscription, you will select your Membership Level, subject to VIVRELLE’s approval. You may request to change your Level as set forth below.
(c) Changes. Your Membership Level may be changed from time to time. To request a Level change, please visit your Account. You must return any Accessories that are only available to a higher Level before you may change your Level If you change a Level, provided such change is in compliance with the terms of this Section, the change will be effective as of the first day of the next Month, and you will be charged the Fee for the new Level on the next Start Date.
5. Fees and Payment.
(a) Generally. The fee for each Level is set forth on the VIVRELLE website at www.vivrelle.com/how-it-works (“Fee”). The Fee is subject to change at any time by VIVRELLE. The Fee includes your Membership for each Month, as well as shipping the Selected Accessories to you, and return shipping.
(b) Card. In order to maintain your Membership, you must have a valid payment method on file in your Account (the “Card”).
(c) Payment. On the Start Date of each Month, your Card will be charged the Fee. You will be charged the Fee on each Month’s Start Date for each Month of the Term.
(d) Authorization. By becoming a Member, you authorize VIVRELLE or its designee to charge your card for the Fee each Month during the Term. VIVRELLE reserves the right to, but does not have the obligation to, determine whether your Card is pre-authorized to accept a minimum charge equal to the Fee, or another amount determine by VIVRELLE.
(e) Non-Payment. If your Card cannot be charged, in whole or in part, for any reason, you agree to pay all amounts due upon VIVRELLE’s demand.
(f) Termination for Non-Payment. VIVRELLE may terminate or suspend this Agreement if your Card cannot be charged.
(g) Interest and Collection Costs. In the event you do not pay any amounts due under this Agreement, you will be liable to VIVRELLE for any costs or expenses incurred by or on behalf of VIVRELLE in connection with its collection of amounts due under this Agreement. Further, interest shall be payable on all amounts outstanding at the rate of at a rate equivalent to the prime rate according to the Wall Street Journal or another reputable business publication plus one percent (1%), or the maximum amount allowed by law, whichever is lower, per annum from the date such payment was due,
(h) Taxes. All applicable local, city, and state taxes are your responsibility. You agree to pay these taxes.
(i) Deposits. VIVRELLE reserves the right to request a deposit , and/or require the return of any or all Selected Accessories in your possession in the event you fail to pay the Fee, in the event VIVRELLE is unable to charge your Card, or in the event VIVRELLE has reason to believe, in its sole discretion, that you may not pay the Fee.
6. Account. Your account must contain complete and accurate information at all times, including a valid Card. You are responsible for ensuring the confidentiality of your Account login information. Do not allow anyone else to access your Account. You are responsible for all uses of your Account.
(a) Generally. Once you select a Selected Accessory, subject to VIVRELLE’s approval, and availability of the Selected Accessory, you will receive a notification that the Selected Accessory has shipped, with a tracking number.
(b) Delivery Method. The Selected Accessory will ship via the courier of VIVRELLE’s choice.
(c) Signature Required. The delivery of the Selected Accessory will be on a signature required basis. Please ensure that someone will be available to sign for the Selected Accessory.
(d) Delivery Time. Delivery time for Selected Accessories may vary based upon (a) Accessory availability, (b) your delivery address, (c) when you place an order, and (d) other circumstances impacting delivery. There are no guarantees as to the receipt date of any Selected Accessory. The risk of loss for items shipped passes to you upon delivery.
(a) Generally. Unless purchased, all Selected Accessories must be returned to VIVRELLE. Each Selected Accessory will be sent with materials to return ship the Selected Accessory.
(b) With Packaging. All Selected Accessories must be returned with Packaging, except for the dust bags, which you may keep.
(c) VIVRELLE Shipping Method. YOU MUST USE THE VIVRELLE SHIPPING METHOD TO RETURN ANY ACCESSORIES TO VIVRELLE. YOU MAY NOT USE YOUR OWN SHIPPING MATERIALS. Please keep all Packaging and packaging materials to return the Selected Accessories. You will be provided a shipping label by VIVRELLE. If you have lost the shipping label, you may print a replacement from your Account. You cannot use your own shipping method. Please ensure that the package is successfully delivered to the appropriate carrier pick up.
(d) Your Own Shipping Method. IF YOU LOSE ANY RETURN SHIPPING MATERIALS PROVIDED BY VIVRELLE, OR OPT NOT TO USE THE LABEL PROVIDED BY VIVRELLE, OR OTHERWISE ACCESSORIES USING ANYTHING OTHER THAN THE MATERIALS AND LABELS PROVIDED BY VIVRELLE, SUCH RETURN WILL BE AT YOUR OWN RISK, AND YOU WILL BE RESPONSIBLE TO VIVRELLE FOR ANY DAMAGED OR LOST ACCESSORIES IN TRANSIT TO VIVRELLE, OR THAT ARE NOT RECEIVED BY VIVRELLE. PLEASE BE AWARE OF ANY COVERAGE LIMITATIONS ASSOCIATED WITH YOUR SELECTED RETURN METHOD IF YOU OPT NOT TO USE THAT WHICH IS PROVIDED BY VIVRELLE, AS YOU ARE RESPONSIBLE FOR THE SELECTED ACCESSORY UNTIL IT IS RECEIVED BY VIVRELLE.
(e) In Person Drop Off. You may drop off Selected Accessories for return at VIVRELLE’s office, located at 118 East 28th Street, Suite 207, New York, New York, 10017, during VIVRELLE’s normal business hours, provided you must hand the Selected Accessory to an authorized VIVRELLE representative and you may not leave the Accessory without handing it to a VIVRELLE representative.
9. Purchase. From time to time, VIVRELLE may agree to sell Accessories to Members. If you are interested in purchasing an Accessory, please contact VIVRELLE at email@example.com. The purchase of Accessories will be on terms agreed to between you and VIVRELLE.
10. Coverage. There are two types of coverage – the base coverage that comes with each Subscription and an enhanced coverage plan. YOU WILL ONLY RECEIVE THE ENHANCED COVERAGE PLAN IF YOU SUBSCRIBE TO IT AND PAY FOR IT. If you want to change your coverage plan, please visit your Account. In each instance, there are limitations on what the coverage covers. COVERAGE WILL ONLY APPLY IF THE ACCESSORY IS IN YOUR CARE, CUSTODY, AND CONTROL. VIVRELLE IS NOT THE COVERAGE PROVIDER, AND ALL DECISIONS AS TO WHETHER THERE IS COVERAGE WILL BE MADE IN VIVRELLE’S THEN CURRENT COVERAGE PROVIDER’S DISCRETION, AND ANY SUCH DECISIONS WILL BE BINDING.
(a) One Coverage Policy Only. If you have a coverage policy that covers an Accessory, and you collect any payment from that coverage policy, you will have to reimburse VIVRELLE for any amounts you collect under your policy towards the cost of the Accessory.
(b) Base Coverage. Your Subscription includes a base coverage policy. The base policy covers normal wear and tear to the Accessories. There will be no obligation on your part if you suffer a loss of an Accessory in a fire, robbery, or burglary, as long as the item was in your custody and control at the time. In the event of such a loss, please forward a signed statement detailing the loss and a copy of the police report. Should an Accessory be returned in severely damaged condition, you are responsible for paying the amounts determined by VIVRELLE in connection with such damaged item. If the normal wear and tear is a result of your negligence, or you intentionally damaged the Accessory, no coverage will apply.
(c) Enhanced Coverage. If you elect to upgrade your coverage to the enhanced coverage, and pay for the additional fee through the rental and time of damage, if an Accessory is returned with damage that is more than standard wear and tea, you will not be responsible for the cost, unless the damage was a result of your negligence, or you intentionally damaged the Accessory, or the Accessory was not in your care, custody, and control when the damage occurred.
(d) Custody and Control. You will be 100% responsible for any loss or damage resulting if an Accessory is not in your care, custody and control. The only place an Accessory can be left unattended is in your residence or hotel room.
(e) No Coverage. Regardless of the coverage you select, if an Accessory is not returned, and you or VIVRELLE terminates this Agreement, you are responsible for paying the retail value of the Accessory to VIVRELLE.
11. Release; Limitation of Liability. In consideration for your use of the Accessories, you hereby remise, release and forever discharge and agree to hold harmless VIVRELLE and its affiliates, and each of their respective officers, directors, employees, agents, parents, subsidiaries, affiliates, successors, representatives, and assigns (collectively, the “Releasees”), from and against any and all rights, claims, demands, liability, losses, damages (including, but not limited to, personal injuries, death or property damage), and actions whatsoever, in law or in equity that you or your heirs, executors or assigns may have, arising in any way from your use of the Accessories, except to the extent that exclusion or limitation of such liability is prohibited by law, and you hereby further hold the Releasees harmless from any taxes or subsequent costs imposed on you as a result of your use of the Accessories.
You further agree that if, despite this release, waiver of liability and assumption of risk, you or someone on your behalf makes a claim against any of the Releasees, you will indemnify and hold harmless each of the Releasees from any loss, liability or expense which may be incurred as a result of such claim.
You agree that you will not assert or maintain against Releasees any claim, action, suit or demand of any kind or nature whatsoever, including those grounded upon invasion of privacy, rights of publicity or other civil rights, and you hereby release the Releasees and each of them, from and against any and all claims, liabilities, damages, demands, actions, causes of action(s), costs and expenses whatsoever, at law or in equity, known or unknown, anticipated or unanticipated, which you ever had, now have, or may, shall or hereafter have by any reason, matter, cause or thing arising out of this Agreement, the Services, or the Accessories.
You have read this Agreement and understand that you are giving up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature. Accordingly, you intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law. You agree that, if any portion of this Agreement is held to be invalid, the balance of the Agreement shall continue in full force and effect.
12. Disclaimers; Limitation of Liability.
(a) As-Is Use. Your use of the Accessories is as-is, and at your own risk. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SUBSCRIPTION, INCLUDING THE ACCESSORIES, IS AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR YOUR USE OF THE ACCESSORIES.
(b) DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW, VIVRELLE, ON BEHALF OF ITSELF AND THE RELEASEES, DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSES, IN CONNECTION WITH THE SUBSCRIPTION, INCLUDING YOUR USE OF ACCESSORIES.
(c) NO REPRESENTATIONS. VIVRELLE DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION, INCLUDING THE ACCESSORIES, AND SPECIFICALLY DISCLAIMS, WILL BE IN GOOD CONDITION, IN WORKING CONDITION, OR OTHERWISE USABLE. FURTHER, VIVRELLE DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION, INCLUDING THE ACCESSORIES, AND SPECIFICALLY DISCLAIMS, WILL BE ERROR FREE, WITHOUT DELAY OR INTERRUPTION, OR WITHOUT DELAY.
(d) LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VIVRELLE EXCEED $1,000.00. IN NO EVENT SHALL VIVRELLE BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES to your or your property for any claim, harm, damage, or loss, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE accessing or USE of, OR INABILITY TO USE, THE SERVICES ASSOCIATED THEREWITH including but not limited to the SUBSCRIPTION, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF YOUR BREACH OR RELATED TO YOUR INDEMNITY OBLIGATIONS. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES; AND, IF ANY OF THOSE LAWS APPLY TO YOU, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
13. Indemnification. You shall indemnify and hold VIVRELLE, the Releasees, each of their affiliates, and any of their parent company, sister company, subsidiary, related company or affiliate thereof, and each of their respective officers, directors, employees, agents and affiliates harmless from and against any and all demands, claims, actions, causes of action, liabilities, suits, proceedings, investigations or inquiries, or any damages, judgments, awards, or settlement thereto, and all related out-of-pocket expenses, including, but not limited, to all reasonable outside attorneys’ fees and court costs, arising from or related to or arising from your breach of this Agreement and/or your use of the Subscription.
14. Limitations of Subscription. The Accessories may not be available at all times, and VIVRELLE is not responsible for some or all Accessories being unavailable when you want to rent them. The Accessories are available on a first come, first served basis, and you may not be able to rent Accessories at the time you desire. You agree that VIVRELLE is not responsible for the unavailability of any Accessories.
15. Usage. You hereby irrevocably grant permission to VIVRELLE and its affiliates, successors and assigns and their respective designees, the irrevocable, perpetual right to photograph, videotape, record and/or otherwise reproduce names, images, likeness, silhouettes, voice/sound, statements, quotes, comments, opinions, experiences, including but not limited to with VIVRELLE products, and other information about you and reproductions of you (collectively, “Reproductions”), and the irrevocable right to use, copy and publish any and all Reproductions in any manner, without payment or compensation except as set forth herein, in the unlimited, unrestricted distribution, advertising, promotion and exploitation, including commercial uses and exploitation, in and/or by any method, medium, and device now known and/or hereafter devised, including within a mobile application, through social media, on the Internet and otherwise, throughout the universe in perpetuity. You agree that the rights granted to VIVRELLE shall include the right, exercisable in VIVRELLE’s sole discretion, to depict and/or portray you and the Reproductions to such extent and in such manner as VIVRELLE may determine, and the absolute and irrevocable right to edit, modify, alter and otherwise change any Reproductions, and to juxtapose any Reproductions with any other photographs, film clips, video, image, media and/or other material. Neither the Reproductions nor any content, advertisement or other material need be submitted to you for approval and you hereby waive any right to inspect or approve the finished Reproductions, if any, or printed or electronic matter that may be used in conjunction with them now or in the future, whether that use is known or unknown to you. You agree that VIVRELLE (or its designee(s)) shall be the exclusive owner of all copyright, trademark, intellectual property and other rights in and to the Reproductions and any and all modifications, improvements, and derivations thereof. In the event that you have, as a matter of law, any right, title or interest in or to the Reproductions or any modifications, improvements or derivations thereof, you assign and will assign to VIVRELLE all such right, title and interest. The provisions of this Section shall survive termination or expiration of this Agreement.
16. Actual Damages. In the event you fail to pay the Fee, or any other amounts due or owing to VIVRELLE, or to return any Selected Accessories, or return a Selected Accessory in a damaged condition, in addition to being charged the complete retail value of the Selected Accessory in your possession, you will be responsible to pay VIVRELLE its ACTUAL DAMAGES, including but not limited to the Fee plus interest, as well as applicable costs or expenses incurred by VIVRELLE in connection with collecting payment from you, cleaning the Selected Accessory, restoring the Collected Accessory, or otherwise fixing the Selected Accessory.
17. Term and Termination.
(a) Term. The “Initial Term” of this Agreement shall commence on the Effective Date and continue for three (3) Months, unless earlier terminated as set forth herein. This Agreement shall automatically renewal for successive one (1) Month “Renewal Terms”). The first Renewal Term shall commence on the first day of the first Month after the last day of the Initial Term, and each consecutive Month thereafter, unless earlier terminated as set forth herein. The Initial Term and the Renewal Term shall be referred to as the “Term”.
(b) No Early Termination of the Initial Term. Except for your breach of this Agreement, this Agreement may not be terminated during the Initial Term.
(c) Non-Renewal. After the last day of the Initial Term, you may terminate this Agreement at any time, provided: (i) you do not have any Selected Accessories; (ii) VIVRELLE has received any Selected Accessories returned to VIVRELLE; and (iii) you terminate your Account at least five (5) days before the Start Date of your next Month. If you terminate this Agreement in compliance with the foregoing, the effective date of termination of this Agreement will be the last day of the Month. If you terminate under this Section with less than five days before the Start Date of your next Month, this Agreement will still terminate, but the effective date of termination will be the last day of the following Month. If this Agreement is terminated under this Section, you will be responsible for payment of the Fee through the end of the Month in which termination is effective.
(d) By VIVRELLE.
(i) VIVRELLE may terminate this Agreement at any time, for any or no reason, with immediate effect. If this Agreement is terminated by VIVRELLE, you will be entitled to a refund, on a pro rata basis, of any Fee actually paid by you for the remainder of the Month after the Effective Date of termination. You refund will be on a pro rata basis based on a thirty-day period.
(e) Suspension. In addition to VIVRELLE’s termination rights as set forth herein, if you breach this Agreement, or VIVRELLE believes or has reason to believe that you are likely to breach this Agreement, or that you have or are likely to damage an Accessory, VIVRELLE may suspend your access to Accessories.
(f) Result of Termination. Except as specifically provided herein to the contrary, upon expiration or termination of this Agreement, your Account will be terminated, and your Subscription will end. Further, you must immediate return any Selected Accessories, or other Accessories you have in your possession, in compliance with the return procedure. You will pay all Fees accrued during the Term if not already collected.
18. Governing Law/Resolution of Disputes. This Agreement shall be construed and interpreted pursuant to the laws of the State of New York without consideration to its choice of law provisions, and any claims arising hereunder shall be prosecuted therein.
In the interest of resolving disputes between you and VIVRELLE in the most expedient and cost-effective manner, you and VIVRELLE agree that ALL disputes arising out of or related to this Agreement or the Subscription, whether based in tort, statute, fraud, contract, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these terms, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. This arbitration provision shall survive termination of this Agreement and any other contractual relationship between you and VIVRELLE. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND VIVRELLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding the paragraph above, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if such an action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
If you desire to assert a claim against VIVRELLE, and you therefore elect to seek arbitration, you must first send to VIVRELLE, by certified mail, a written Notice of your claim (“Notice”). The Notice to VIVRELLE should be addressed to: Vivrelle, LLC, 118 East 28th Street, Suite 207, New York, New York, 10017, (“Notice Address”). If VIVRELLE desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by VIVRELLE, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If VIVRELLE and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or VIVRELLE may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by VIVRELLE or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association (“AAA”) at www.adr.org. The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association, as modified by these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms, including this arbitration agreement. Any arbitration hearing will take place telephonically, unless an in-person hearing is requested by either party and such request is approved by the arbitrator. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. The arbitrator shall award reasonable fees to the prevailing party, unless such award would conflict with applicable law.
YOU AND VIVRELLE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and VIVRELLE agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts in New York, New York.
19. Conflicts. In the event of a conflict between this Agreement and any Additional Agreement, the terms and conditions of this Agreement shall govern.
20. Remedies. In the event that either party should breach or violate any of its covenants, representations or warranties contained in this Agreement, or fail to perform any of its material obligations hereunder, the other party shall be entitled to exercise any rights or remedy available to it at law or in equity. Such rights and remedies shall include but shall not be limited to termination (as provided herein), damages and the right to seek injunctive relief. The exercise of any rights or remedies available to the non-breaching party shall not preclude the concurrent or subsequent exercise by it of any other right or remedy and all rights and remedies shall be cumulative.
21. No Assignment. You acknowledge and agree that the rights granted herein are personal in nature and may not, in whole or in part, be transferred, delegated, or assigned by you without the prior written express consent of VIVRELLE. In the event you assign this agreement to a third party with VIVRELLE’s consent, you shall remain primarily liable for the performance of its obligations hereunder. Nothing herein shall prevent VIVRELLE from assigning its rights or obligations under this Agreement.
22. General Provisions.
(a) Entire Understanding. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and may not be orally changed, altered, modified or amended in any respect. To effect any change, modification, alteration or amendment of this Agreement, the same must be in writing, signed by the parties hereto.
(b) Final Agreement; Modification. This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter, except for the Additional Agreements, which are incorporated. At any time and from time to time, and without your consent, VIVRELLE may unilaterally amend, modify, or change this Agreement or any Additional Agreement, in its sole discretion and without any notice or cause. By continuing to use any Service after any amendment, modification, or change, you agree to be bound by all such amendments, modifications, and changes.
(c) No Waiver. No waiver by either party, whether expressed or implied, of any provision of this Agreement or of any breach or default of any party, shall constitute a continuing waiver of such provision or any other provisions of this Agreement, and no such waiver by any party shall prevent such party from acting upon the same or any subsequent default of any other part of any provisions of this Agreement.
(d) Relationship of Parties. This Agreement does not constitute and shall not be construed as constituting an agency, a partnership or joint venture between you and VIVRELLE. Additionally, nothing contained herein shall be construed as to create between you and VIVRELLE the relationship of franchisor and franchisee. You shall have no right to obligate or bind VIVRELLE in any manner whatsoever, nor shall VIVRELLE have the right to obligate or bind you, and nothing herein contained shall give or is intended to give any rights of any kind to any third persons.
(e) Successors and Assigns. Without limiting anything herein to the contrary, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
(f) Survival of Terms. All terms, conditions, obligations and provisions capable of surviving the termination or expiration of this Agreement shall so survive.
(g) Draftsmanship of Agreement. This writing is the result of the mutual effort of the parties and their respective counsel; therefore, the parties agree that neither party shall be considered the draftsman of this Agreement.