Acceptance of Terms
- By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated herein by reference and each of which may be updated from time to time without notice to you to the extent permitted by applicable law.
- Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. The right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
Product Information; Limitation on Quantities
Excluding any content which may be submitted by users from time to time, we strive to ensure that the information on the Site is complete and reliable. Nonetheless, the Site may contain pricing errors, typographical errors and other errors or inaccuracies for which we will not be liable to you or any other person, unless otherwise prohibited by law. We reserve the right to limit quantities purchased by users and to revise, suspend, or terminate an event or promotion at any time without notice (including after an order has been submitted and/or acknowledged). We do not guarantee that all Products described on our Site, in our e-mails or in other communications to you (“Products”) will be available.
We control and operate the Site and the Services from the United States. We make no representation that materials on the Site or made available through the Services are appropriate or available for use outside the United States. If you choose to access this Site or use the Services from outside the United States, you do so at your own risk and are responsible for compliance with local laws, if and to the extent local laws are applicable. We may ship to certain locations outside of the United States, and reserve the right to apply additional shipping and handling charges to any orders shipped outside of the United States.
- Definition. For purposes of these Terms of Service, the term "Content" includes, without limitation, videos, audio clips, written posts and comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, "Content" also includes all User Content (as defined below).
- User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. You may delete or remove your User Content, through a request made to one of our employees or agents. When your User Content is deleted, it will be removed from the Services. However, you understand that any removed User Content may persist in backup copies for a reasonable period of time (but will not following removal be shared with others).
- Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content may be protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in or relating to any Content accessed through the Services.
- Use License. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for personal, non-commercial purposes. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use is expressly prohibited without prior written permission from us or from the copyright holder identified in such Content's copyright notice. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
- License Grant. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Site, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds). You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive license to access your User Content through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content. For clarity, the foregoing license granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
- Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. Further, we have no obligation to monitor the Site or the Services. However, we reserve the right to (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
Rules of Conduct
You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy);
- is false, misleading, untruthful or inaccurate;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
- impersonates any person or entity, including any of our employees or representatives; or
- includes any third party's personal information, identification documents or sensitive financial information.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or "spam" on the Services; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
Third Party Services
The Services may permit you to link to and otherwise interact with other websites, services or resources on the Internet, and other websites, services or resources may contain links to and interact with the Services. When you access third party resources, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. Any such use does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
Payments and Billing
- Purchases and Paid Subscriptions. Certain of our Services include offering you Products and gift cards for purchase through the Site. Please note that any payment terms presented to you in the process of you placing an order through the Site are deemed part of this Agreement.
- Billing. We use a third-party payment processor (the "Payment Processor") to bill you for your orders made through the Site. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By choosing to place an order through the Site you agree to pay us, through the Payment Processor, all charges at the prices then in effect for your order in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your "Payment Method"). You agree to make payment using that selected Payment Method. You may change your Payment Method at anytime through your Account. We reserve the right to correct any errors or mistakes made the Payment Processor even if it has already requested or received payment from you. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts owed by you to Fill Mill upon demand.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE BY LOGGING INTO YOUR ACCOUNT SETTINGS.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your account. Any fees paid hereunder are non-refundable, except for Products returned in accordance with our Shipping & Returns Policy. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no control over, and no duty to take any action regarding:
- which users gain access to the Services;
- what Content you access via the Services;
- what effects the Content or any Products may have on you;
- how you may interpret or use the Content or Products; or
- what actions you may take as a result of having been exposed to the Content or Products.
To the maximum extent permitted by applicable law, you release us from all liability for you having acquired or not acquired Content or Products through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. We make no representations concerning any Content or Products contained in or accessed through the Services, and will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.
THE SERVICES, PRODUCTS AND CONTENT ARE PROVIDED BY FILL MILL "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE PRODUCTS AND RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. WE DISCLAIM ANY LIABILITY ASSOCIATED WITH THE USE OF THE PRODUCTS AND YOU AGREE THAT YOU WILL NOT SUE FILL MILL FOR ANY CLAIM RELATED TO ANY PRODUCTS PURCHASED OR OTHERWISE OBTAINED THROUGH THE SERVICES.
SOME STATES, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW FOR CERTAIN LIMITATIONS WITH RESPECT TO IMPLIED WARRANTIES (SUCH AS HOW LONG AN IMPLIED WARRANTY LASTS), SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS SHALL ONLY APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to: (a) your User Content; (b) your violation of any applicable law that protects us or our legal rights or those of any third party that your actions have damaged; (c) your breach of these Terms of Service; (d) infringement by you of any intellectual property, privacy or other rights of Fill Mill or any third party; or (e) any and all activities that occur under your Account, username and/or password. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF ONE HUNDRED U.S. DOLLARS ($100.00). BECAUSE SOME STATES, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW FOR CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, AS SET FORTH IN THIS SECTION, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL ONLY APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IF IT IS FINALLY DETERMINED BY A COURT OF LAW THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION DOES NOT APPLY TO YOU, THEN YOU AGREE THAT OUR TOTAL LIABILITY IN THE AGGREGATE FOR ANY CLAIMS MADE BY YOU OR ANY THIRD PARTY ON YOUR BEHALF SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00) OR THE TOTAL AMOUNT OF YOUR LAST PURCHASE FROM US, WHICHEVER IS GREATER.
Notice Required by California Law
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice:
name, address and telephone number of the provider of this service is nabfly, Inc., DBA Fill Mill, 151 W 25th St, 5th Floor, New York, NY 10001, 888.565.6762. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address or to firstname.lastname@example.org.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N 112, Sacramento, CA 95834 or by telephone at (800) 952-5210.
Governing Law and Jurisdiction
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT OUTLINES CERTAIN RIGHTS THAT YOU ARE WAIVING OR LIMITING BY USING OUR SERVICE AND PURCHASING OUR PRODUCTS. REMEMBER, THAT YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS OF SERVICE, INCLUDING THE PROVISIONS RELATING TO GOVERNING LAW AND JURISDICTION.
THIS SECTION LIMITS CERTAIN RIGHTS YOU MIGHT OTHERWISE HAVE INCLUDING: (1) THE RIGHT TO HAVE DISPUTES BETWEEN YOU AND US GOVERNED BY THE LAW OF ANY JURISDICTION, OTHER THAN THAT OF THE STATE OF NEW YORK, AND (2) THE RIGHT TO ADDRESS ANY SUCH DISPUTE OUTSIDE OF NEW YORK.
These Terms of Service, and any dispute arising between you and us arising out of or relating to these Terms of Service, the Services or the Content, shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and us or our employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one neutral commercial arbitrator from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
The Parties agree as follows: (a) ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (d) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (e) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
Notwithstanding the foregoing (i) either Party may bring an individual action in small claims court to the extent eligible, and (ii) either Party may seek emergency equitable relief before the state or federal courts located in the State of New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
Important Information for New Jersey Residents
If you live in New Jersey, please carefully read these Terms of Service and understand that by using the Site or Services, placing an order on the Site or through the Services, in addition to the other terms and conditions you agree that: (1) any dispute between us will be governed by New York law addressed in binding arbitration in New York (See Governing Law and Jurisdiction), (2) under the laws of the State of New Jersey, limitations on implied warranties or the exclusion or limitation of certain damages as set forth above (See Warranty Disclaimer and Limitation of Liability) may not apply to you, and (3) you are responsible for any harm (See Indemnification) that you cause us, whether it is because of (a) your User Content; (b) your violation of any applicable law that protects us or our legal rights or those of any third party that your actions have damaged; (c) your breach of these Terms of Service; (d) infringement by you of any intellectual property, privacy or other rights of Fill Mill or any third party; or (e) any and all activities that occur under your Account, username and/or password.
Entire Agreement and Severability
These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the remaining terms of these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service. If changes are made to the Terms of Service, the revised version will be posted to the Site. We also reserve the right to change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following posting of a notice to the Site of any changes to these Terms of Service constitutes acceptance of those changes. You can determine when the most recent version of the Terms of Service became effective by referring to the “Effective Date of Terms of Service" at the bottom of this page. We assume no responsibility to you if you fail to check for revisions to these Terms of Service or for your actions or omissions caused by same. No change or alteration in these Terms of Service will be deemed in any instance to be an admission of fault, liability or violation of applicable law.
- Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
- Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without your consent.
- Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
- Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com
- No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
- Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
You may contact us at the following address: 151 W 25th St, 5th Floor, New York, NY 10001
Effective Date of Terms of Service: January 1, 2020