ROTM, LLC (dba “Rubber of the Month”) TERMS OF SERVICE
Last updated on May 19, 2012
THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “YOUR” “CUSTOMER”) AND ROTM, LLC (“WE” OR “RUBBER OF THE MONTH”), THE OWNER AND OPERATOR OF THE WWW.RUBBEROFTHEMONTH.COM WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND THE PRODUCTS SOLD ON IT AND MEMBERSHIPS SOLD TO IT. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, THE SITE.
By signing up for a Membership (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 14 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify and hold harmless Rubber of the Month if your child breaches or disaffirms any term or condition of this Agreement.
1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
1.1 – CHANGES TO TERMS
Rubber of the Month may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you. Rubber of the Month also reserves the right to modify this Agreement at any time. When we make changes to the Agreement, we will revise the “Last updated” date at the top of the Agreement and we will notify you of the changes by prominently posting a notice of such changes on the Site and/or by sending you an email. We encourage you to review this Agreement whenever you visit the Site. By continuing to access and use the Site after any such changes have been posted, you are indicating your acceptance of such changes, even if you have not reviewed the changes.
1.2 – PERSONAL INFORMATION/PRIVACY
2 – PASSWORDS; USE OF SITE
2.1 – PASSWORDS
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify Rubber of the Month if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.
2.2 – USE OF SITE; PROHIBITIONS
Subject to your compliance with this Agreement, Rubber of the Month hereby grants you a limited, personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Content or otherwise attempt to gain unauthorized access to any portion of the Site or Content or any other systems or networks connected to the Site, or to any server of Rubber of the Month or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace any information on any other person who visits the Site; (e) use the Site or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site or Content.
3 - TERMS OF SALE
3.1 - SALES OF PRODUCTS AND MEMBERSHIPS TO END USERS ONLY
Rubber of the Month sells condoms and other sexual protection and enhancement supplies (the “Product(s)”) from the Site to end-user customers who purchase monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable.
3.2 - PRICING
Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on Rubber of the Month’s then-current pricing page located on the Site at: http://www.RubberoftheMonth.com/goods. The price that we will charge you for the Products and Memberships will be the price as posted on the Site on the date you first sign-up for a Membership to the Site. Rubber of the Month reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 – REFUND/CANCELLATION POLICY
If you are dissatisfied with the Product for any reason, Rubber of the Month will refund the amount paid for your most recent month of service. Refund requests must be made directly to Rubber of the Month at Support@RubberoftheMonth.com. All refund requests must be made within thirty (30) days of the date of shipment by Rubber of the Month. Rubber of the Month is not liable for products that are damaged or lost in transit to Rubber of the Month.
Promptly following Rubber of the Month’s receipt of your request (typically within five (5) business days), Rubber of the Month will credit the amount paid for the returned product (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the credit card you used to make the original purchase. Notwithstanding the foregoing, Rubber of the Month does not control when a specific credit card company processes a chargeback transaction. You are responsible for contacting your credit card company if you have questions about the status of the chargeback.
Rubber of the Month will not provide a refund for a request that is received by Rubber of the Month more than thirty (30) days after the date of original shipment. Rubber of the Month also does not provide a refund for returned products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
3.4 - PAYMENT METHODS; AUTOMATIC MEMBERSHIP RENEWALS AND MEMBERSHIP CANCELLATION POLICY
Rubber of the Month accepts credit card payments only. You agree to pay all fees charged to your account based on Rubber of the Month’s fees, charges, and billing terms in effect as shown on the payment page you first sign-up for a Membership to the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Memberships based on the address that you provide as the shipping address when you register for a Membership, and you authorize Rubber of the Month or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products If you do not pay on time or if your credit card cannot be charged for any reason, Rubber of the Month reserves the right to either suspend or terminate your account and Membership and terminate these Terms. All sales and payments will be in US Dollars.
IMPORTANT NOTICE TO CONSUMER: Rubber of the Month will automatically renew your Membership on each monthly anniversary date of the Membership and, as authorized by You during the Membership sign-up process, will charge your credit card with the applicable Membership fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Membership fee payments. Each Membership renewal period is for one month. You may cancel your Membership at any time by logging on to your account within RubberoftheMonth.com. To cancel a membership, please login to your account on the Site and select the “membership options” link at the bottom of the page, then follow instructions towards cancellation. All cancellation requests must be received by the first day of the month. Cancellation requests received after the first of the month shall take effect the following month. If you have any problems, please email Support@RubberoftheMonth.com. Rubber of the Month requires a reasonable amount of time to process your Membership cancellation request. If you cancel your Membership, you will enjoy your Membership benefits until the end of the then-current Membership term, and your Membership benefits will expire at the end of the then-current Membership term for which you have paid. You will not be eligible for a prorated refund of any portion of the Membership fees paid for any unused days of the then-current Membership term.
3.5 – SHIPPING AND PRODUCT ACCEPTANCE
Regular monthly shipments will ship on either the ninth (9th) day of each month, the eighteenth (18th) day of each month, or the twenty-seventh (27th) day of each month, or on the nearest business day to those dates, should those dates fall on a United States national holiday or weekend.
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent Priority Mail or First-Class mail via the US Postal Service. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
4 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that Rubber of the Month or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
Rubber of the Month is a trademark of Rubber of the Month in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Rubber of the Month, Copyright © 2012 ROTM, LLC All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
5 – THIRD PARTY SITES; INDEMNIFICATION
5.1 – THIRD PARTY WEB SITES
5.2 – INDEMNIFICATION
You hereby agree to defend, indemnify and hold each of the Rubber of the Month Parties (as defined in Section 6.1 below) harmless from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Content or Products.
6 – DISCLAIMER OF WARRANTIES
6.1 – DISCLAIMER OF WARRANTIES
THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. RUBBER OF THE MONTH, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RUBBER OF THE MONTH PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND RUBBER OF THE MONTH. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RUBBER OF THE MONTH OR ANY PERSON ON BEHALF OF RUBBER OF THE MONTH SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION 6 SHALL EXCLUDE OR LIMIT THE RUBBER OF THE MONTH PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
6.2 – INHERENT CHARACTERISTICS OF CONDOMS; WARRANTY DISCLAIMER
You, the customer, acknowledge and understand that, although the proper and consistent use of condoms has been demonstrated to reduce the risk of pregnancy and the transmission of certain sexually transmitted diseases, condoms cannot completely eliminate these risks. Because condoms are made from natural materials (rubber latex), any condoms, may tear, break, slip off, or otherwise fail to work effectively, including after proper storage by you and proper use by the ultimate consumer. You acknowledge and assume these risks. Rubber of the Month DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS. You acknowledge that disclaimer and agree that ROTM LLC AND shall have no liability in respect of merchandise, except for liability for returns as stated herein and/or liability associated with intentional misconduct or gross negligence in its packaging, storage or ship of merchandise.
7 – LIMITATION OF LIABILITY
IN NO EVENT SHALL ANY RUBBER OF THE MONTH PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A RUBBER OF THE MONTH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A RUBBER OF THE MONTH PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS, THE RELEVANT RUBBER OF THE MONTH PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID RUBBER OF THE MONTH FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
NOTHING IN THIS SECTION 7 SHALL EXCLUDE OR LIMIT ANY RUBBER OF THE MONTH PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH RUBBER OF THE MONTH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
8.1 - DISPUTE AND ARBITRATION; CLASS ACTION WAIVER
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting our customer service department at Support@RubberoftheMonth.com or Rubber of the Month, Attn: ROTM SUPPORT PO BOX 290 HERMOSA BEACH CA 90254. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), We each agree to resolve those disputes ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO RUBBER OF THE MONTH’S ENFORCEMENT AND PROTECTION OF ITS INTELLECTUAL PROPERTY RIGHTS) through binding arbitration or small claims court instead of in courts of general jurisdiction. This includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.
We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 8.2 below). ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Neither you nor Rubber of the Month has the right to act as a class representative or participate as a member of a class of claimants with respect to any claim.
All disputes relating in any way, directly or indirectly, to Rubber of the Month for breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort will be arbitrated according to the rules of the American Arbitration Association (AAA) in Los Angeles, California, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of this Agreement, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i) there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii) all damages claims and awards will be governed by the provisions of the California Civil Code, and (iii) the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the AAA fee, you agree to notify all persons against whom you have an arbitrable claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties.
8.2 – CHOICE OF LAW
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in Los Angeles County, California. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
9 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
9.1 – ELECTRONIC COMMUNICATIONS
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
9.2– GENERAL TERMS