Starling Brands, Inc.
1. Acceptance of Terms.
If You agree to the terms of service on behalf of an entity, or in connection with providing or receiving services on behalf of an entity or agency, You represent and warrant that You have the authority to bind that entity or agency to the terms of service. In that event, “You” and “Your” will refer and apply to that entity or agency.
Please be advised that these Terms contain provisions that govern how any claims You and Starling against each other will be resolved. As set forth herein, these Terms provide that any and all Claims of either Party hereto shall be exclusively submitted to Binding Arbitration. These Terms also limit liability, restrict or remove a Party’s ability to recover and the remedies available. Each Party also waives the right to bring an action as a member or representative of a class and is only permitted to seek legal or equitable relief on an individual basis.
If You do not agree to any portion of these Terms, You should not access or otherwise use the Services.
In addition, when using Our Services, You shall be subject to any posted policies, guidelines or applicable rules. Any such additional policy is available for review at http://www.StarlingBrands.com/legal. All such policies, guidelines, and rules are also hereby incorporated by reference into these TOU.
4. Description of Service
StarlingBrands.com makes available a collection of resources through Our Services to its registered and non-registered users including, without limitation, the StarlingBrands.com website and mobile application.
THE SERVICES ARE PROVIDED “AS IS” AND THE COMPANY ASSUMES NO RESPONSIBILITY FOR TIMELINESS, NON-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, WRITING, IMAGE, OR PERSONALIZATION SETTINGS. ADDITIONALLY, THE COMPANY PROVIDES INFORMATION WITHOUT WARRANTY OF ANY KIND AND AS SUCH, THE COMPANY IS NOT RESPONSIBLE OR LIABLE FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, OR RELIABILITY OF THE INFORMATION.
5. Third Party Content
Through Our Services, We may provide, or third parties such as Our Users may provide, links to other websites or internet based Content, which are not maintained by or related to Starling. Links to such sites are provided for Your convenience and information only and are not sponsored by, endorsed or otherwise affiliated with Starling. We may also from time to time provide third party content on the Web Site by framing or other methods. THE CONTENT ON ANY LINKED WEB SITE IS NOT UNDER COMPANY’S CONTROL AND WE ARE NOT RESPONSIBLE FOR THE CONTENT OF LINKED WEB SITES, INCLUDING ANY FURTHER LINKS CONTAINED IN A THIRD PARTY WEB SITE. IF YOU DECIDE TO ACCESS ANY OF THE THIRD PARTY WEB SITES LINKED TO THE WEB SITE, YOU DO SO ENTIRELY AT YOUR OWN RISK.
Starling has no control over these sites and their content and makes no representations or warranties about the content, completeness, quality or accuracy of the links, materials or information contained on any such website. You acknowledge and agree that Starling is not responsible for the availability of such links, resources, and content, and does not endorse, and is not responsible or liable for, any content, advertising, products, or other materials made available on or from these linked websites. You also acknowledge and agree that We are not responsible or liable, directly or indirectly, for any damage or loss caused by or alleged to have been caused by, or in relation to, the use of any Content, goods or services offered through these links or any failures and/or disruption to Your computer system that results from Your use of any such links, or for any intellectual property or other third party claims relating to Your posting or using such links.
If a third party links to the Web Site, it is not necessarily an indication of an endorsement, authorization, sponsorship, affiliation, joint venture or partnership by or with Starling. A third party site or service that links to Our Services: (i) may link to, but not replicate, Content; (ii) may not create a browser, border environment or frame Content; (iii) may not imply that We are endorsing it or its products; (iv) may not misrepresent its relationship with Us; (v) may not present false or misleading information about Starling products or services; and (vi) should not include content that could be construed as distasteful, offensive or controversial, and should contain only Content that is appropriate for all age groups.
6. Notices And Communications
(b) Your consent to receive records and notices electronically will remain in effect until You withdraw it. You may withdraw Your consent to receive further records and notices electronically at any time by contacting Us at the email and/or address at the end of these Terms. In order to provide consistent Services to all of our Users, if You withdraw Your consent to receive such records and notices electronically, we will revoke Your access to the Site and the Site Services, and You will no longer be permitted to use the Site or the Site Services. Any withdrawal of Your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process Your request for withdrawal. Please note that Your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to You before the withdrawal of Your consent becomes effective.
(c) You understand that You may receive business-related communications from Starling such as service announcements and account administrative notices and You agree that these communications are not “unsolicited commercial email advertisements” and thus, subject to all applicable laws, You agree to receive them and You will not be able to opt out of receiving such communications.
(d) As a user of the Services You also understand and agree that the Services will also include advertisements. You agree that such advertisements are not “unsolicited commercial email advertisements” and, subject to all applicable laws, You agree to receive them and You will not be able to opt out of receiving such communications.
(e) You understand and agree that Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and the advertiser. You agree that We shall not be responsible or liable for any loss or damage incurred as the result of such dealings or as the result of the presence of such advertisers on the Services.
7. Rules of Behavior and Conduct
YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE EXPOSED TO SUCH CONDUCT AND CONTENT FROM OTHER USERS AND THAT YOU USE THE SERVICE ENTIRELY AT YOUR OWN RISK, AND THAT STARLING, INC. SHALL HAVE NO LIABILITY OF ANY KIND FOR SUCH CONDUCT AS CARRIED OUT BY ANY THIRD PARTY AT ANY TIME.
YOU UNDERSTAND AND AGREE THAT IF YOU VIOLATE ANY OF THE RULES OR TERMS, WE RESERVE THE RIGHT TO TERMINATE YOUR ACCOUNT, ACCESS AND/OR USE OF THE SERVICES IMMEDIATELY WITHOUT PRIOR NOTICE AND WITHOUT ANY RIGHT OF REFUND, SET-OFF OR A HEARING AS SET FORTH HEREIN.
8. Our Proprietary Rights; Trademarks and Copyrights
All trademarks and service marks of Starling that may be referred to on the Services are the property of Company. You also acknowledge Our exclusive rights in the Starling trademark and service mark. Trademarks, service marks, logos, and copyrighted works appearing on Our site and Services are the property of Starling or the party that provided such intellectual property. Neither the name of Company nor any of Our other trademarks, service marks or copyrighted materials may be used in any way, including in any advertising, hyperlink, publicity or promotional materials of any kind, whether relating to the Services or otherwise, without Our prior written permission. Starling, and any party that provides intellectual property to Our Services, retain all rights with respect to any of their respective intellectual property, and no rights in such materials are transferred or assigned to You, in whole or in part, at any time. Nothing on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Starling’s trademarks, service marks, or intellectual property without Company’s prior written permission.
You acknowledge and agree that the Services and any necessary software used in connection with the Services contain proprietary and confidential information that is the property of Starling, Inc. and its licensors, and is protected by applicable intellectual property and other laws. No rights or title of to any of the software or service used in connection with any Services is provided, transferred or assigned to You. You further acknowledge and agree that content contained in advertisements or information presented to You through the Services or advertisers is protected by copyright, trademarks, service marks, patent, privacy, and/or other proprietary rights and laws. Except as expressly authorized by Us or advertisers, You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or software, in whole or in part, at any time.
Starling respects the intellectual property of others and we request our users do the same. In certain circumstances and at its discretion, We may, but are not obligated to, disable, suspend and terminate the accounts of members who may be infringing on the rights of others. If You believe that Your Content has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have otherwise been violated, please contact Us as soon as practically possible at: legal@Starlingbrands.com and/or at the address, email address or telephone number set forth at the bottom of these Terms with the following:
i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
ii) a description of where the material You claim is infringing is located on the site;
iii) Your name, address, telephone number, and email address;
iv) a statement claiming that You have a good faith belief that the disputed use has not been authorized; and
v) a statement by You made under penalty of perjury, that the above information is accurate and that You are the copyright or intellectual property holder or our authorized to act on behalf of the holder.
9. Disclaimer of Warranties
(a) NO WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEB SITE IS AT YOUR SOLE RISK. THE WEB SITE, MOBILE APPLICATION, ONLINE SERVICES AND THE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST LEGAL EXTENT INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
THE SERVICES ARE PROVIDED ON A COMMERCIALLY REASONABLE BASIS AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY OF THE CONTENT OR THE SERVICES OFFERED ARE OR SHALL REMAIN UNINTERRUPTED OR ERROR-FREE, THE CONTENT SHALL BE NON-INFRINGING ON ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, THAT DEFECTS SHALL BE CORRECTED, THAT THE WEB PAGES ON THE WEB SITE, THE ONLINE SERVICE, ANY ELECTRONIC COMMUNICATION OR THE SERVERS USED IN CONNECTION WITH THE SERVICES ARE OR SHALL REMAIN FREE FROM ANY MALWARE, VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PERSON USING THE WEB SITE WILL BE THE PERSON THAT HE OR SHE REPRESENTS HIMSELF OR HERSELF TOBE. COMPANY DOES NOT GUARANTEE THAT THE SERVICE WILL BE ACCURATE OR RELIABLE, THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEB SITE AND/OR THE SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT COMPANY SHALL HAVE ADEQUATE CAPACITY, STORAGE OR BANDWIDTH FOR THE SERVICES AND/OR THE ONLINE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
(b) Data Use And Storage You acknowledge that Starling may establish general practices and limits regarding use of the Services including, without limitation, the maximum number of email, text or messages which may be sent or received from a Registered User account of the Services; the maximum size of any message, or total messages that may be sent from or received by an Account of the Services, the maximum amount of disk space that will be allotted on Starling’s servers on Your behalf for Your Account and/or Content, and the maximum number of times and duration for which You may access the Service in a given time. You agree that We have no responsibility or liability for the deletion or failure to store or transmit any messages or communications or other content maintained or transmitted by Our Services. You further acknowledge that Starling has the right to modify these practices and limits from time to time.
You agree to defend, indemnify and hold Starling and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by Company, directly or indirectly, with respect to or arising out of: (i) Your failure to comply with these Terms; (ii) Your breach of Your obligations under these Terms; (iii) Your use of the rights granted hereunder, including without limitation any claims made by any third parties; and/or (iv) Your violation of any third party right, including without limitation any copyright, property, or privacy right.
11. LIMITATION OF LIABILITY.
COMPANY’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES, OUR WEB SITE, MOBILE APPLICATION, ONLINE SERVICES AND/OR ANY SERVICE PROVIDED IN CONNECTION WITH ANY OF THE STARLING SERVICES SHALL BE THE CANCELLATION OF YOUR USER ACCOUNT WITH COMPANY.
IF ANY JURISDICTION SHALL NOT ALLOW OR PERMIT SUCH LIMITATION OF LIABILITY, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY AMOUNT OF MONEY OVER TEN U.S. DOLLARS ($10.00), WHICH YOU ACKNOWLEDGE TO BE A FAIR AND REASONABLE SUM IN THE EVENT OF ANY LOSS BY YOU OF ANY KIND.
12. Disclosures Required by Law
BY ACCEPTING THIS AGREEMENT YOU WAIVE ALL RIGHTS AND AGREE TO HOLD STARLING HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US DURING OR AS A RESULT OF OUR INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER OUR COMPANY OR ANY LAW ENFORCEMENT OR REGULATORY AUTHORITIES.
In order to resolve any such potential Claim expediently and effectively, You and Starling agree to provide each other with written notice containing information to ascertain the account the Claim is related to, the legal and factual basis for asserting a Claim, and the most current contact information for the parties or their representatives (“Notice”). Recipient of such Notice will have a 45-day period from receipt to evaluate and respond to such Claim.
Before serving a demand for Arbitration, You agree to provide the other party with a Notice of Your Claim at the e-mail or physical mailing address listed at the end of these Terms. Starling also hereby agrees to provide You Notice at the e-mail address on file.
If the resolution of any Claim is not reached within the Notice time period set forth above, You and Starling agree and accept that such a Claim shall be exclusively resolved by Party’s submission of the dispute to Binding Arbitration. This shall be the sole forum for any Claim, and apply to the resolution of all disputes that otherwise would be submitted to the jurisdiction of a court of law, administrative hearing or other governmental proceeding.
The arbitration shall be conducted in accordance with the then existing Consumer Arbitration Rules of the American Arbitration Association (AAA); or applicable set of Rules as determined by the AAA. In such an event, the number of arbitrators shall be one (1) and the place of arbitration shall be Los Angeles, California. If AAA will not administer a Claim, either party shall be entitled to compel arbitration and the assignment of a neutral arbitrator.
If any portion of this Arbitration Provision shall be deemed unenforceable, the remainder shall be enforced to the fullest extent of the law. It is specifically understood and agreed that any party may enforce any award rendered by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have the authority to grant injunctive or other forms of equitable relief to any party. Any Arbitration of a Claim shall be completely confidential. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. THE PARTIES SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THIS SECTION SHALL SURVIVE THE TERMINATION OR CANCELLATION OF THIS AGREEMENT.
14. Miscellaneous Terms; General Information
The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between You and Starling, except and solely to the extent expressly stated in this Agreement. Persons or entities employed or retained by one party shall have no authority to make representations or commitments on behalf of or otherwise obligate the other party in any manner whatsoever.
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties’ intentions as reflected in the provision, and the other provisions of these Terms, shall remain in full force and effect.
The section titles in the Agreement are for convenience only and have no legal or contractual effect.
If You have additional questions or comments of any kind, or if You see anything on any of Our Services You think is inappropriate, fraudulent or illegal, please let us know at legal@StarlingBrands.com or at the address below.
STARLING DOES NOT ACCEPT SERVICE OF ANY LEGAL PROCESS BY EMAIL OR MAIL; ALL SUCH SERVICE SHOULD BE HAND DELIVERED AND OCCUR IN ACCORDANCE WITH THE APPROPRIATE APPLICABLE STATUTES.
Any other notices intended to have a legal effect must be in writing and delivered, receipt confirmed to either or both the following:
By e-mail: legal@StarlingBrands.com
Starling Brands, Inc.,
100 King Street West, Suite 5600
Toronto Ontario MSX 1C9
EFFECTIVE AS OF July 5, 2018