(Effective as of June 10, 2016)
Welcome to Merkaela! The following Terms and Conditions (“Terms”) apply when you view or use services (“Service”) provided by Merkaela (“Merkaela,” “us,” “we” or “our”) via our website located at http://www.merkaela.com
(“Site”). Please read these Terms carefully. These Terms apply to all users and others who access or use the Site.
1. Registration as User of Merkaela
Any visitor of the Site can browse the Service. To order products, you must register as a user (“User”) on the Site. As a registered User, you will create a personalized account, which includes a unique username and a password. You will also be asked to provide your name, email address and any other information we request on the registration page. Please choose a secure password and maintain your account information confidential. You agree to notify us immediately of any unauthorized use of your password and/or account. Merkaela will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your username, password and/or account.
You must be at least 13 years of age and must be a resident of the United States to use the Site and register for the Service.
Merkaela reserves the right to terminate, suspend or disable any User registration at any time for any reason. The Merkaela Site will not be made available to Users who have been suspended from the Service.
2. Use of the Merkaela Site
You may use the Site to access Merkaela’s Service for your personal use in compliance with these Terms.
a. Prohibited Uses:
Merkaela permits you to use the Site, subject to certain restrictions. You agree that:
- You will not copy, modify, distribute or share the Contents of this Site without the prior consent of Merkaela.
- You will not use the Service for any unlawful purpose or for the promotion of illegal activities;
- You will not attempt to, or harass, abuse or harm another person or group;
- You will not use another User’s account without permission;
- You will not submit content that is malicious, false or inaccurate;
- You will not submit images or any other content that is subject to third party proprietary rights, including copyright, privacy, publicity, trade secret, trademark, etc., unless you are the owner of such rights or have the appropriate permission from the rightful owner to submit the image or content;
- You will not interfere or attempt to interfere with the proper functioning of the Service or the Site;
- You will not bypass any robot exclusion headers or other measures we take to restrict access to the Service;
- You will not use any software, technology, or device to scrape, spider, or crawl the Service to reproduce, harvest or manipulate data; and
- You will not publish or link to malicious content intended to damage or disrupt another User’s browser, computer or mobile device.
b. Third Party Sites:
As part of the Service, Merkaela may provide you with convenient links to third party websites (“Third Party Sites”) as well as content belonging to or originating from third parties. These links are provided as a courtesy to Users. Merkaela has no control over these links or the promotions, materials, information, goods or services available on Third Party Sites. Merkaela’s linking to any Third Party Sites does not imply approval or endorsement by Merkaela. If you decide to leave the Site and access the Third Party Sites, you do so at your own risk and you should be aware that our Terms and policies no longer govern.
a. Product Information:
Merkaela sells a curated box comprised of hand-made products, manufactured products, along with mantras, music and information on use (“Products”). Some products are hand-made by Merkaela. Other products are hand-made or manufactured by third parties.
Merkaela strives to provide accurate and up-to-date information on its Site about its Products. The contents, descriptions, ingredients and any information about the Products available for purchase on the Site are subject to change at any time with or without notice.
Merkaela reserves the right, with or without prior notice, to do any of the following with respect to purchases: (i) limit the quantity available of any Product; (ii) discontinue the sale of any product; (iii) impose conditions on any coupon or any promotion; or (iv) refuse to fulfill any order for any reason.
Please see Section 10 for more information about limitations on Products.
b. Purchasing Products
By placing an order on the Site, you agree to enter into a binding contract for the purchase of Merkaela Products. You agree to pay all charges for the Products including any applicable state and local sales tax, and shipping and handling charges. Your sales tax rate is based on your shipping address. We will charge tax only in states where products sold over the internet are taxable. Merkaela will provide you with the total price including all relevant charges before you accept the purchase order.
By placing an order on the Site, you represent that you will only use the Products in a lawful manner and for personal use only, not commercial purposes.
c. Risk of Loss
Any Products purchased from the Site are shipped by third party carrier. Upon delivery to the third party carrier, title and risk of loss pass to you. Therefore, you bear the risk of loss from that point forward.
In the event you are unsatisfied with the Products, you may return the full box, including all Products, for a refund of that month’s fee.
4. Subscription Service
a. Subscription Plans
You are billed for the Service on a subscription basis ("Subscription") according to the Subscription plan you choose.
Merkaela offers various Subscription plans including: (a) monthly subscription, in which you are billed every month with automatic renewal after each month; (b) prepaid 3-month subscription, in which you are billed once every 3 months with automatic renewal after 3 months; or (c) prepaid 6-month subscription, in which you are billed once every 6 months with automatic renewal after 6 months.
All Subscription Plans are billed on the 6th day of the month. If you prepay for a 3-month subscription, you will be billed on the 6th day every three months. If you prepay for a 6-month subscription, you will be billed on the 6th day every six months. You should expect delivery of that Product box at the end of each month.
b. Automatic Renewal of Subscription
You agree that Merkaela may submit charges to your chosen payment method for any automatic renewal of a Subscription plan without any further authorization from you. To cancel automatic renewal of any Subscription plan, you must provide Merkaela with notice of your intention to terminate automatic renewal. You may provide notice by either: (a) unsubscribing on the Site by clicking on: www.merkaela.com
or (b) emailing Merkaela at [email protected]
c. Gift Subscriptions
Merkaela makes a great gift! You may purchase any Subscription plan as a gift for friends or family. Please indicate that the Subscription you are purchasing is a gift and we will not autorenew the Subscription. However, there are no refunds or returns available on gift plans.
d. Cancellation Policy
To cancel any Subscription plan at any time, you may either: (i) log on to your Merkaela account at www.merkaela.com
and follow the steps to cancel your Subscription; or (ii) email us at [email protected]
and we will send you a confirmation upon cancellation. See “Cancellation Policy” under FAQ’s for more details on how to cancel your Subscription.
You may cancel your Subscription within 15 days of purchase for a full refund, as long as you have not received a box or you return any boxes you have received. After 15 days from the date of purchase of any Subscription, you may cancel the remaining term of your Subscription. You will not be refunded for any boxes you have received prior to canceling. If you cancel on or after the 6th day of the month, you will still be billed for that month’s box and the cancellation will take effect the following billing period.
a. Payment Methods:
If you wish to purchase the Products made available through the Service, you will be asked to supply certain information relevant to your purchase including, without limitation, your payment method (e.g. your credit card number), billing address, shipping information and any additional information Merkaela needs in order to process your purchase request.
You represent that you have the legal right to use any payment method you provide on the Site in connection with the purchase of Products through the Site. By submitting payment information through the Service, you grant Merkaela the right to share this information with third parties who provide payment processing services for the purpose of completing the order you initiated through the Service. All credit card information is securely processed through third party processing services.
b. Fraudulent Charges:
Merkaela reserves the right to refuse to process an order due to suspected fraud, unauthorized purchase or illegal activity. Merkaela will deny fulfillment of the order and your payment method will be denied.
6. Merkaela’s Rights
a. Right to Restrict Usage
Merkaela reserves the right to modify, change, suspend or discontinue any aspect of, or restrict access to, any part of the Site or any Subscription at any time.
b. Right to Revoke Subscription
c. Proprietary rights
As used in these Terms, “Content” includes any information, materials, descriptions, mantras, comments, music, text, images, videos, graphics, trademarks, logos, software and other elements found on the Site and in the Product boxes.
You acknowledge and agree that any Content, other than Content submitted by Users, provided on the Merkaela Site or in the Product boxes, is the property of Merkaela or our licensors. All Content is protected by copyright, trademark and/or other intellectual property laws. You agree not to sell, license, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, modify or create derivative works from any Content or materials on the Site or in the Product boxes. Except as expressly set forth in these Terms, you are not granted a license and no rights are conveyed to you by virtue of accessing or using the Site. All rights not granted under these Terms are reserved by Merkaela.
7. Content contributed by Users
When you register as a User on Merkaela, you may be able to submit Content on the Site (“User Content”). You are solely responsible for the User Content that you submit, post, upload, link to or otherwise make available via the Site.
By submitting any User Content via the Site, you expressly grant, and you represent and warrant that you have a right to grant, to Merkaela a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness, if applicable, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service, including but not limited to use on its Site, in its Product boxes, or in other communications. The rights you grant in this license continue even if you stop using the Service or terminate your User account.
By submitting any User Content while using the Service, you agree:
- You are solely responsible for your account and the activity that occurs while signed in to or while using your account;
- You will not post information that is malicious, false or inaccurate;
- You will not submit User Content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such Content; and
- You hereby affirm Merkaela has the right to determine whether any of your User Content submissions are appropriate and comply with these Terms, and Merkaela has the right to remove any and/or all of your submissions, and terminate your account with or without prior notice.
You understand and agree that any liability, loss or damage that occurs as a result of the use of any User Content you submit on the Site is solely your responsibility. Merkaela is not responsible for any public display or misuse of your Content. Merkaela does not pre-screen or monitor all Content, but we may, at our discretion, monitor and/or record your interactions with the Service. Merkaela, at its discretion, reserves the right to remove any User Content.
8. Copyright Notices
a. Termination of Repeat Infringer Accounts.
Merkaela respects the intellectual property rights of others and requests that the Users do the same. Pursuant to 17 U.S.C. § 512(i) of the United States Copyright Act, Merkaela has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Service who are repeat infringers. Merkaela may terminate access for Users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
b. DMCA Take-Down Notices:
If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C § 512) (“DMCA”) by sending the following information in writing to Merkaela’s designated copyright agent at [email protected]
The date of your notification;
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that your Content that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
- Your physical or electronic signature;
- A description of the content that has been removed and the location at which the content appeared before it was removed;
- A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by Merkaela’s copyright agent, Merkaela may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may (in Merkaela’s discretion) be reinstated on the Site in 10 to 14 business days or more after receipt of the counter-notice.
a. Consent to Receive Merkaela Communications
By providing Merkaela with your email address and/or telephone number, you consent to receive communications from Merkaela, including messages about our Products or any promotions, at any time. You may “opt out” of receiving communications from us for marketing purposes by changing your account settings or emailing us at [email protected]
. Please note that even if you opt out of receiving communications for marketing purposes, we may still contact you for administrative purposes. To cease all communications from Merkaela, you must unsubscribe from the Service by following the cancellation link on your Merkaela profile.
You agree that all Terms, agreements, notices, disclosures, and other communications that Merkaela provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
b. Communicating with Us
You may contact Merkaela by emailing us at [email protected]
. We will do our best to respond to your email within 24 hours.
Please note that communications made through Merkaela’s email system will not constitute legal notice to Merkaela or any of its officers, employees, agents or representatives in any situation where notice to Merkaela is required by contract or any law or regulation. All legal notices must be mailed to:
370 East 162nd street, 3C
Bronx, NY 10451
10. Disclaimers – PLEASE READ CAREFULLY
a. WARRANTY DISCLAIMER
THE SERVICE, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, MERKAELA EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE AND PRODUCTS INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MERKAELA MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USE OF THE SERVICE AND PRODUCTS. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
b. Product Information:
Merkaela strives to provide accurate and up-to-date information on its Site about its Products. However, the Site may contain errors in the descriptions, ingredients, pricing and any other information about the Products. Merkaela disclaims any and all liability associated with any errors or inaccurate information about its Products that are represented on its Site or on any communications with Users. The contents, descriptions, ingredients and any information about the Products are subject to change at any time with or without notice.
c. Product Availability:
By showing Products on the Site, Merkaela does not imply or warrant that the Products are available, as Merkaela does not guarantee that all Products featured on the Site are available for purchase at all times. Please inquire at [email protected]
to verify availability of any Product on the Site.
d. Product Ingredients and Effects:
Merkaela does not represent or warrant that any information about the health effects, nutrition, ingredients, allergens or other Product information is complete or accurate. Merkaela recommends that all Users consult with a physician or other health professional regarding any health, nutritional or allergy concerns. You agree to use the Products at your own risk.
e. Content and Other Information:
Any opinions, advice, statements or other Content made available through the Site or in the Product boxes are for informational purposes only and should not necessarily be relied upon. Merkaela does not guarantee the accuracy, completeness, or usefulness of any information provided by the Service and neither does Merkaela adopt nor endorse, nor is Merkaela responsible for, the accuracy or reliability of any opinion, advice, or statement made on the Site or in the Product boxes. Under no circumstances will Merkaela be responsible for any loss or damage resulting from anyone’s reliance on information or other Content by Merkaela or by third parties contributing Content that is posted on the Service, or transmitted to Users.
a. Release of Damages:
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MERKAELA, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) YOUR USE OF OR INABILITY TO USE THE SERVICE; (B) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; (C) YOUR USE OF OR INABILITY TO USE THE PRODUCTS; OR (D) ANY OTHER INTERACTIONS WITH MERKAELA OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MERKAELA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12. Dispute Resolution
Merkaela provides Users with a complaint resolution method by submitting questions or concerns to Customer Service at [email protected]
. However, we understand that sometimes there is a need to resolve disputes through a third party. Any dispute, controversy or claim between you and Merkaela arising out of, relating to, or in connection with the Terms, the Site or your use of the Site, the Service, any Subscription, or any products or services offered or distributed through the Service (collectively, “Dispute”), shall be determined by final, binding arbitration; except you may bring a qualifying Dispute in small claims court. The arbitration will be conducted in New York before one arbitrator and will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction. The arbitrator will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award except as may be necessary to conduct the arbitration hearing.
This dispute resolution provision constitutes your and Merkaela’s written agreement to arbitrate disputes under the Federal Arbitration Act. You waive your right to a jury trial and agree to submit any Disputes, except small claims, to arbitration. Unless you and Merkaela agree otherwise, no arbitration will be joined to any other arbitration involving another party, whether through class action or otherwise. You also agree that any claim or cause of action related to any Dispute must be filed within one (1) year after such claim of action arose or will be banned.
No Class Action. You and Merkaela agree that each shall bring any Dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association.
13. Other Terms
a. Modification of Terms.
Merkaela may modify and update these Terms at any time. It is your sole responsibility to check the Site from time to time to view any such changes to the Terms. If you continue to use the Site, you signify your agreement to our revisions to these Terms. Merkaela will notify you of material changes to the Terms by posting a notice on our homepage and/or sending an email to the email address you provided to us upon registration. What constitutes a material change will be determined at our sole discretion.
If any part of these Terms is held invalid or unenforceable, that portion of these Terms will be construed consistent with applicable law. The remaining portions will remain in full force and effect.
c. No Waiver.
Any failure to enforce any provision of these Terms will not be considered a waiver of our right to enforce such provision. Any waiver of Merkaela’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Merkaela. No purported waiver or modification of these Terms by Merkaela via telephonic or email communications shall be valid.
d. Governing Law.
These Terms and your use of the Site are governed by the federal laws of the United States of America and the laws of the State of New York, without regard to conflict of law provisions.
Our rights under these Terms will survive any termination of these Terms.