TERMS AND CONDITIONS

This website (the “Website”), is operated by MerchSouce, LLC (the “Company”) as a licensee of the Sharper Image trademarks and owner of the PowerBoost trademark. The terms “we”, “us” and “our” refer to the Company. The Company offers this Website, including all information, tools and services available from this Website to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here and on this Website.

ACCESSIBILITY

The Company is committed to accessibility and digital inclusion with the ongoing goal of maximizing conformance with Web Content Accessibility Guidelines (WCAG) 2.1 Level AA Success Criteria. To this end, we are continuously evaluating the Website and making improvements that will enhance user experience.”

OVERVIEW

By visiting our Website, you engage in our “Services” and agree to be bound by the following terms and conditions (“Terms of Service”) and Privacy Policy, which are incorporated herein by reference. These Terms of Service apply to all users of the Website and the Services, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content.

Please read these Terms of Service and our Privacy Policy carefully before accessing or using our Website or the Services. By accessing or using any part of the Website or the Services, you agree to be bound by these Terms of Service and our Privacy Policy. If you do not agree to Terms of Service and our Privacy Policy, then you may not access the Website or use any of the Services.

Any new features or tools which are added to the Website shall also be subject to the Terms of Service and our Privacy Policy. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of the Terms of Service at any time. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Website following the posting of any changes constitutes acceptance of those changes.

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Website. You may not use this Website, the Services and our products for any illegal or unauthorized purpose, nor may you, in the use of the Services, violate any laws and regulations (including but not limited to copyright laws). You must not transmit any worms or viruses or any code of a destructive nature. A breach or violation of any of the Terms of Service will result in an immediate termination of the Services and the access to this Website.

We may need to contact you about your use of the Services. These communications are part of the Services. As part of your use of the Services, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You are responsible for any messaging or data fees you may be charged by your wireless carrier.

GENERAL CONDITIONS – INTELLECTUAL PROPERTY

We reserve the right to refuse service to anyone for any reason at any time. You understand that your content (not including credit card information and Personal Information as defined in our Privacy Policy), may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information and Personal Information (as defined in our Privacy Policy) is always encrypted during transfer over networks.

For purposes of these Terms of Service, “Company Content” means and includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through this Website and the Services to you. Company Content, the Services and its underlying technology are protected by copyright, trademark, patent, intellectual property and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices on this Website or incorporated in or accompanying the Services.

This Website and the Services are intended for your personal, non-commercial use. The Company grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Services and access and view this Website and the Company Content for your personal non-commercial use. This license is provided solely for your personal use and enjoyment of this Website and the Services as permitted in these Terms of Service. You agree not to reproduce, reverse engineer, duplicate, copy, link to, sell, resell or exploit any portion of the Services and the Company Content, use of the Services and the Company Content, or access to the Services or any contact on the Website through which the Services are provided, without our express written permission and consent. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by the Company or its licensors, except for the licenses and rights expressly granted in these Terms of Service.

The headings used in these Terms of Service are included for convenience only and will not limit or otherwise affect these Terms of Service.

ACCURACY, COMPLETENESS, AND TIMLINESS OF INFORMATION

We are not responsible if information made available on this Website is not accurate, complete or current. The material on this Website is provided for general information and entertainment purposes only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this Website is at your own risk. This Website may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Website at any time, but we have no obligation to update any information on our Website. You agree that it is your responsibility to monitor changes to our Website.

Full use of this Website and the Services is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of this Website and the Services and it is your responsibility to ensure your equipment’s functionality.

MODIFICATIONS TO THE SERVICE

Information on our products and Services are subject to change without notice. We reserve the right at any time to modify or discontinue the Services (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Services.

PRODUCTS OR SERVICES

We have made every effort to display as accurately as possible the colors and images of our products that appear on our Website. We cannot guarantee that your computer monitor’s display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Website is void where prohibited.

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Services will be corrected.

OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the Website is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

THIRD PARTY LINKS

Certain content, products and services available via our Services may include materials from third-parties.

Third-party links on this Website may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties. You acknowledge that these Terms of Service and our Privacy Policy do not apply to any third-party services or websites. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any third-party services or websites.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the relevant third-party.

USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If, at or without our request, you send us certain specific submissions (for example contest entries), creative ideas, suggestions, proposals, plans, or other materials and content, whether online, by email, by postal mail, or otherwise (collectively ”Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, alter, modify and otherwise use in any medium any Comments that you forward to us.

By making your Comments available to us, you hereby grant us a non-exclusive, transferable, sublicensable, worldwide, fully paid royalty-free license to use, copy, modify, publicly display, publicly perform and distribute your Comments (“Your License”).

We are and shall be under no obligation to:

  1. maintain any Comments in confidence;
  2. to pay compensation for any Comments; or
  3. to respond to any Comments.

We may, in our sole discretion, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or violates any party’s intellectual property or these Terms of Service. Additional terms and conditions may apply to contests, sweepstakes, giveaways and other promotions sponsored by the Company and its partners.  It is your responsibility to carefully review those terms and conditions.

You are responsible for your Comments. You represent and warrant that you own your Comments or that you have all rights necessary to grant us Your License.

You also represent and warrant that your Comments and the use and provision of your Comments will not:

  1. infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
  2. violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
  3. be fraudulent, false, misleading or deceptive;
  4. be defamatory, obscene, pornographic, vulgar or offensive;
  5. promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
  6. be violent or threatening or promote violence or actions that are threatening to any person or entity; or
  7. promote illegal or harmful activities or substances.

You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third-party.

You also agree that your Comments will comply with the following guidelines:

  • Be respectful of the opinions of others. Even though you might not agree with someone, that doesn’t mean they are wrong or deserve to be belittled
  • Remember that what works for you may not work for everyone else. Give everyone the same courtesy you would expect in return.
  • Do not post profane or explicit content.
  • Do not post pictures that might be considered inappropriate.
  • Do not post communications that could be interpreted as threatening or harassing.
  • Do not post, advertise, or promote products or services commercially.

PERSONAL INFORMATION

Your submission of personal information through the store is governed by our PRIVACY POLICY.

ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our Website or in the Services 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 Services or on this 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 Services or on this Website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Services or on this Website, should be taken to indicate that all information in the Services or on this Website has been modified or updated.

DIGITAL MILLENNIUM COPYRIGHT ACT

the Company respects other parties’ intellectual property rights and copyright law, and expects its users to do the same. The Company reserves the right, in its sole discretion, with or without notice, to terminate content, Comments, account holders and users who infringe the rights of copyright holders. Please see the Company’s DMCA/COPYRIGHT POLICY, which is incorporated and made part of these Terms of Service.

PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Services, the Company Content and the Website or its content:

  1. for any unlawful purpose;
  2. to solicit others to perform or participate in any unlawful acts;
  3. to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances;
  4. to infringe upon or violate our intellectual property rights or the intellectual property rights of others;
  5. to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
  6. to submit false or misleading information;
  7. to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of this Website, other websites, third parties or the Internet;
  8. to collect or track the personal information of others;
  9. to spam, phish, pharm, pretext, spider, crawl, or scrape;
  10. for any obscene or immoral purpose; or
  11. to interfere with or circumvent the security features of the Services or this Website, other websites, or the Internet.

We reserve the right to terminate your use of the Services or this Website for violating any of the prohibited uses or these Terms of Service.

DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

We do not guarantee, represent or warrant that your use of our Services, the Company Content and this Website will be uninterrupted, timely, secure or error-free.

We do not warrant that the results that may be obtained from the use of the Services, the Company Content and this Website will be accurate or reliable.

You agree that from time to time we may remove the Services, the Company Content and this Website for indefinite periods of time or cancel the Services, the Company Content and this Website at any time, without notice to you.

You expressly agree that your use of, or inability to use, the Services, the Company Content and this Website is at your sole risk. This Website, the Company Content and the Services and all products and services delivered to you through the Services are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

In no case shall the Company, our directors, officers, employees, affiliates, agents, contractors, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of this Website, the Company Content any of the Services or any products procured using the Services, or for any other claim related in any way to your use of this Website, the Company Content and the Services or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Website, the Company Content and the Services or any content (or product) posted, transmitted, or otherwise made available via the Services, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law

DISCLAIMER, LIMITATION OF LIABILITY, AND INDEMNIFICATION

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THIS WEBSITE, ALL CONTENTS AND ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THIS WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THIS WEBSITE OR ITS SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS. ALTHOUGH THE COMPANY ENDEAVORS TO PROVIDE ACCURATE INFORMATION, IT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE ACCURACY OR RELIABILITY OF INFORMATION ON THIS WEBSITE. YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK. NEITHER THE COMPANY NOR ITS AFFILIATED OR RELATED ENTITIES OR ITS VENDORS, LICENSORS OR CONTENT PROVIDERS SHALL BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DIRECT OR INDIRECT LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHERWISE), INJURY, CLAIM, OR LIABILITY OF ANY KIND OR CHARACTER WHATSOEVER BASED UPON OR RESULTING FROM YOUR USE OR INABILITY TO USE THIS WEBSITE, OR ANY INFORMATION OR MATERIALS PROVIDED ON THE WEBSITE. THE COMPANY IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER. IF YOU ARE DISSATISFIED WITH THE WEBSITE OR ANY MATERIALS ON THE WEBSITE, OR WITH ANY OF THE COMPANY’S TERMS OF SERVICE AND PRIVACY POLICY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE AND THE SERVICES. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, DISTRIBUTORS, LICENSORS, VENDORS AND AFFILIATES FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS, DEMANDS, LIABILITIES, COSTS OR EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING OR ARISING OUT OF YOUR BREACH OF ANY OF THESE TERMS OF SERVICE. CERTAIN PROVISIONS OF THE FOREGOING PARAGRAPH MAY NOT APPLY TO CONSUMERS WITHIN THE STATE OF NEW JERSEY OR IN OTHER JURISDICTIONS WHERE PROHIBITED BY LAW

SEVERABILITY

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

TERMINATION

If you violate these Terms of Service, we reserve the right to terminate and/or deactivate your account and access to this Website and/or the Services, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete any Comments and other information related to you. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms of Service for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our Website.

ENTIRE AGREEMENT – WAIVER

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service, our Privacy Policy and any policies or operating rules posted by us on this Website or in respect to the Services constitutes the entire agreement and understanding between you and us and govern your use of the Services and this Website, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service or Privacy Policies).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

GOVERNING LAW & DISPUTES

The law applicable to the interpretation and construction of these Terms of Service and any transaction (including purchases made on this Website) using or related to the Website, shall be the Federal Arbitration Act, applicable federal laws and the laws of the State of California, USA, without regard to principles of conflict of laws, but subject to the Federal Arbitration Act and other federal law relating to the arbitrability of claims. You agree that all matters relating to your access to or use of the Website, including all disputes, will be governed by the laws of the United States and by the laws of the State of California.

You agree that any disputes and judicial proceeding (including arbitration proceedings) will be brought in Orange County, California. Both you and the Company consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

You further agree that you may only resolve disputes with the Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed under our agreement and these Terms of Service.

CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time at this page. We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our Website. It is your responsibility to check our Website periodically for changes. Your continued use of or access to our Website or the Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

CONTACT INFORMATION

Questions about the Terms of Service should be sent to us here Contact Us.

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