Before accessing and using the Site, please read these Terms carefully because they constitute a legal agreement between Mars and you. BY USING THE SITE, YOU AGREE TO THESE TERMS AND AFFIRM THAT YOU ARE ABLE AND LEGALLY COMPETENT TO DO SO.
IMPORTANT NOTE: THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED OR REPRESENTATIVE CAPACITY.
IF YOU DO NOT AGREE TO ANY PART OF THESE TERMS, THEN PLEASE DO NOT USE THE SITE.
2. PRODUCT AND MERCHANDISE ORDERS
a. Pricing. Pricing, payment and other terms applicable to Product and Merchandise purchases, including, but not limited to, any applicable set-up fees, are set forth on the Site and incorporated into these Terms by reference. MWC may, in its sole discretion, change any such prices or other terms at any time without notice.
b. General Requirements. By placing an order, you represent and warrant to MWC that:
- You are at least 18 years of age (19 in Alabama and Nebraska; 21 in Mississippi);
- If you are an individual consumer, the Product and/or Merchandise is being ordered solely for your personal use, and you will not market, resell or otherwise distribute the Product or Merchandise to any third party for commercial purposes.
- That you are not a business, promotional agency, or distributor.
- You will handle, store and transport all Product in accordance with applicable laws and regulations and in a clean and sufficiently odorless environment so that the Product is not adulterated in any way. You are solely responsible for and assume all liability arising from any repackaging of the Product.
c. Order Acceptance. All orders are subject to acceptance by MWC. MWC must and does reserve the absolute right to reject orders in its sole discretion.
3. CUSTOMER SERVICE
a. If the status of your order appears as 'shipped,' we are unable to add to, change or cancel your order. If your order has not yet been shipped, you may call Customer Service at 1.800.551.0702, and a representative will gladly assist you with your changes or cancellation.
b. Product may not be returned for credit. If your Product order arrives damaged or incomplete and you notify us of the problem within 10 business days after your receipt of your order, we'll promptly replace the defective Product or provide the missing Product. For other information concerning shipping and returns, please contact our Customer Service.
4. YOUR CONTENT
From time to time, MWC may permit you to post or submit content to the Site ("Content"). You understand that whether or not such Content is published, MWC does not guarantee any confidentiality with respect to any Content. You are solely responsible for your own Content and the consequences of posting or publishing it. In connection with your Content, you affirm, represent, and/or warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize MWC to use all intellectual property or other proprietary rights in and to any and all such Content to enable inclusion and use of the Content in the manner contemplated by the Site and these Terms. You will retain all of your ownership rights in your Content. However, by submitting Content to the Site, you hereby grant MWC and its affiliates a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Site and MWC's business, including, without limitation, for promoting Product, Merchandise and the Site (and derivative works thereof) in any media formats and through any media channels. You understand and agree that MWC may retain, but not display, distribute, or perform, server copies of Content that have been removed or deleted from the Site. The above licenses granted by you in Content are perpetual and irrevocable. You further agree that (a) you will not post Content that includes material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including without limitation privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant MWC all of the license rights granted herein; and (b) you will not post Content that includes material that violates or fails to conform to applicable local, national, and international laws and regulations. MWC does not endorse any Content or any opinion, recommendation, or advice expressed therein. MWC expressly disclaims any and all liability in connection with Content. MWC is not responsible for and does not assume any liability for the comments and opinions expressed by you or other users of the Site. You remain solely responsible for your Content. You agree that when using the Site, you will act in a manner consistent with the goals of the Site. By way of example, and not as a limitation, you specifically agree that: (a) you will not post any inappropriate, defamatory, vulgar, obscene, sexually explicit, potentially libelous or slanderous, infringing, harmful, harassing, threatening, illegal, or other material or information that MWC in its sole discretion views as objectionable, including but not limited to, text, graphics, audio, and video files; and (b) you will not post any files that contain viruses, corrupted files, or any other similar software, programs or routines that may damage the operation of the Site or another's computer.
5. FORCE MAJEURE
Notwithstanding any other provision of these Terms, if MWC is delayed in or prevented from fulfilling any of its obligations under these Terms by reason of any event beyond its reasonable control, including but not limited to acts of God or terrorism, fire, strikes, delay of transportation or inability to obtain necessary new materials through normal commercial channels, MWC will not be liable for damages resulting from such delay or prevention. MWC will promptly notify you of the occurrence of any such event and will use reasonable efforts to minimize the resulting delay or prevention.
You agree to defend, indemnify, and hold harmless MWC, its officers, directors, affiliates, employees, suppliers and agents from and against any and all claims, liabilities, damages, losses and expenses (including reasonable attorneys' fees and costs) due to, arising out of or in any way connected with (i) your Product and Merchandise orders, (ii) Product and Merchandise orders made by any third party using your account or password, (iii) your use, handling, repackaging, storage and/or distribution of Product and Merchandise, (iv) breach of any provision of these Terms by you or any third party using your account or password; (v) Content; and/or (vi) your use of the Site.
MWC may change, suspend or discontinue all or any aspect of the Site at any time, including, without limitation, the processing of orders for Product and/or Merchandise and the availability of any information, without prior notice or liability. MWC reserves the right, at its discretion, to change or modify all or any part of these Terms at any time; however, we will not make any changes that have a retroactive effect unless legally required to do so.
8. WARRANTY DISCLAIMER
MWC PROVIDES ALL PRODUCT AND MERCHANDISE AS IS AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MWC AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OR OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE PRODUCT AND MERCHANDISE.
9. LIMITATION OF LIABILITY
In no event will MWC be liable for any consequential, indirect, punitive or special damages of any kind arising out of or relating to use of (or inability to use) the Site and/or Product or merchandise, even if MWC has been advised of the possibility of such damages. This limitation may not be applicable to you because some jurisdictions do not allow limitations on or exclusions of liability for incidental or consequential damages in certain circumstances.
Our failure to act with respect to a breach of these Terms by you or others does not waive our right to act with respect to similar or subsequent breaches. If any part of these Terms is held to be unenforceable or invalid, such part will be deemed automatically superseded by an enforceable, valid provision most closely matching the intent of the original provision and the remainder of these Terms will continue in effect. These Terms will be binding upon you and your successors and permitted assigns. You may not assign any of its rights or obligations hereunder without the express prior written consent of MWC. All remedies available for breach of these Terms are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be deemed an election of such remedy of the exclusion of other remedies. You agree to execute and deliver such further documents and assurances, if any, as may be required from time to time to give effect to these Terms.
11. DISPUTE RESOLUTION
YOU AND MARS AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION AND THAT YOU AND MARS WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW.
YOU AND MARS FURTHER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and Mars and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this Section 10, “Mars Parties”) arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this agreement to arbitration (collectively, "Covered Disputes") will be settled by binding arbitration in the U.S. State of New York administered by the American Arbitration Association (AAA) in accordance with its International Arbitration Rules in effect on the date thereof.
Prior to initiating any arbitration, the initiating party will give the other party at least 60 days' advanced written notice of its intent to file for arbitration. Mars will provide such notice by mail or e-mail using the contact information on file with Mars and you must provide such notice by mail to Mars, Incorporated, Attn: Legal Department, 800 High Street, Hackettstown, NJ 07840.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If, however, you are able to demonstrate that the costs of arbitration will be cost-prohibitive for you as compared to the costs of litigation, Mars will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Mars for all fees associated with the arbitration that Mars paid on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator’s decision must be with written explanation and remain confidential.
Mars and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. Neither Mars nor you are entitled to arbitrate any Covered Dispute as a class, representative or private-attorney action and the arbitrator will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this Section is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).
Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against Mars under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any dispute is in the United States according to the terms of this Section.
LEGAL NOTICE TO NEW JERSEY RESIDENTS: The provisions in this section that (i) limit the period of time within which a claim may be asserted against Mars and (2) exclude certain damages do not apply to New Jersey residents.