Terms & Conditions
Important – Please Read Carefully
These terms and conditions are an enforceable contract between us which affects our respective legal rights and includes a mandatory individual arbitration requirement and class action and jury trial waivers which are set forth below.
Terms & Conditions
Welcome to martooks.com. By utilizing the latest technology to ensure secure, hassle-free shopping, martooks.com (“Website”) can provide you with a broad range of high quality merchandise to help you easily express your individuality and creativity. Keep in mind, however, that we here at Martook Inc. (“Martook,” “Us,” or “We”) provide our services to you, whether personally or on behalf of an entity (“You”), subject to the following notices, terms, and conditions (“Terms” or “TAC”). By accessing and browsing the Website, using any of the services we offer, signing up for promotional mailings and emails, purchasing products from us, communicating with us, and/or registering with us, you agree to be bound fully by the provisions below, without change, as are published at such time.
Internet technology and applicable laws, rules, and regulations change frequently. Accordingly, Martook reserves the right to make changes to the Terms at any time. Your use of the Website after such changes have been made constitutes assent to any new provisions of this tac that may be posted on the website. However, under no circumstances shall any changes to these Terms be applied retroactively.
Product Transactions on the Website. Products may only be purchased by individuals who can form legally binding contracts under applicable law. The Website is not intended for persons under the age of 13. Minors under 18 and at least 13 years of age may only access the Website if they have appropriate permission and direct supervision by a responsible adult. Children under age 13 are not permitted to use the Website. You are responsible for any and all account activity conducted by a minor on your account.
Prohibited Conduct. In your use of the Website, you may not (i) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party (ii) disrupt or interfere with the security or use of the Website, (iii) interfere or damage the Website, including without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods of technology, (iv) attempt to use another‘s account, or personal information, impersonate another person or entity, misrepresent your affiliation with another person or entity, including Martook, federal, state or municipal government, a political candidate, or create a false identity (v) attempt to obtain unauthorized access to the Website or portions of the network that are restricted from general access, (vi) engage, directly or indirectly, in transmission of ‘spam,‘ chain letters, junk mail or any type of unsolicited solicitation, (vii) collect, manually or through automatic process, information about other users without their express consent or other information related to the Website, (viii) use meta tags or other “hidden text” utilizing Website, Martook's name, trademarks, or product names, (ix) advertise, offer to sell, or sell any goods or services, except as expressly permitted by Website, (x) engage in any activity that interferes with any third party‘s ability to use or enjoy the Website, or (xi) assist any party in engaging in any activity prohibited by these TAC.
If you become aware of any conduct that violates these TAC, Martook encourages you to contact customer service at [email protected] Martook reserves the right, but will have no obligation, to respond to such communications.
Intellectual Property Rights
Copyright The graphic and textual content, arrangement, and assembly of this site is the property of Martooks.com or its content suppliers and protected by U.S. and international copyright laws. Users should feel free to use this site as a shopping resource, but any other use of the site, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the content on this site is strictly prohibited. In addition, the software used on this site is the property of Martook or its software suppliers and is protected under U.S. and international copyright laws.
Ownership and Use. Martook will retain ownership of its intellectual property rights and you may not obtain any rights therein by virtue of these TAC or otherwise, except as set forth in this TAC. You will have no right to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit or sublicense from materials or content available on Website in the normal course of your use of the Website. You may not use any third-party intellectual property without express written permission of the applicable party, except as permitted by law.
Representations, Warranties, and Indemnification
By Each Party. Each party represents and warrants to the other party: (i) that it has the full power and authority to enter into and perform its obligations under these TAC, (ii) the assent to and performance by it of its obligations under these TAC do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules, and (iii) these TAC constitute legal, valid and binding obligations of the parties assenting to these TAC, enforceable in accordance with these terms and conditions.
By You. You represent and warrant to Martook that (i) You will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual or proprietary right of Martook in your use of Website, and (ii) You will comply with all applicable laws, rules and regulations in your sue of the Website, including these TAC.
Indemnification. You agree to hold Martook and its employees, representatives, agents, attorneys, affiliates, directors, officers, managers and shareholders (the “Indemnified Parties”) harmless from any damage, loss, cost, or expense (including without limitation attorney‘s fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach of any provision of these TAC by you or (ii) arising from, related to, or connected with the Website. If you are obligated to provide indemnification pursuant to this provision, Martook may in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without the consent of Martook. In some states, including the State of New Jersey, there are limitations on the enforceability of indemnification agreements in connection with consumer purchases of goods or services. In those states, this provision shall be enforceable to the fullest extent permitted by law.
Disclaimers, Exclusions, and Limitations
- DISCLAIMER OF WARRANTIES. MARTOOK PROVIDES ITS WEBSITE “AS IS” AND “AS AVAILABLE” BASIS. MARTOOK DOES NOT MAKE ANY REPESENTATIONS OR WARRANTIES CONCERNING PROVISION OF WEBSITE SERVICES. MARTOOK DOES NOT REPRESENT OR WARRANT THAT IT (I) WILL PROVIDE UNINERRUPTED SERVICE OR ACCESS, (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH HARDWARE OR SOFTWARE YOU USE.
- MARTOOK MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TAC OR ITS RETURN POLICY AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
- EXCLUSION OF DAMAGES. MARTOOK WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY RESULT FROM THE USE OF OUR PRODUCTS INCLUDING ECONOMIC LOSS, INJURY, ILLNESS, OR DEATH. MARTOOK WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF WEBSITE, BASED ON ANY CAUSE OF ACTION, EVEN IF MARTOOK OR ANY OF ITS INDEMNIFIED PARTIES ARE ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
- LIMITATION OF LIABILITY. EXCEPT FOR A PARTY‘S BREACH OF A REPRESENTATION AND WARRANTIES UNDER THESE TAC OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TAC, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TAC, OR SERVICES OR PRODUCTS PROVIDED BY WEBSITE EXCEED THE AMOUNT PAID BY YOU TO MARTOOK FOR ANY PRODUCT(S).
- IN SOME STATES, INCLUDING THE STATE OF NEW JERSEY, THERE ARE LIMITATIONS ON THE ENFORCEABILITY DAMAGES LIMITATIONS IN CONNECTION WITH CONSUMER PURCHASES OF GOODS OR SERVICES. IN THOSE STATES, THESE PROVISIONS SHALL BE ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
LEGAL DISPUTES – AGREEMENT TO ARBITRATE AND CLASS ACTION AND JURY TRIAL WAIVERS
At MARTOOK, we hold in the highest regard our relationships with our customers. Should a dispute arise, we work hard to make things right with every consumer, including those who purchase products from us. Sometimes, a third party may be necessary to help us resolve our disputes, and these Terms limits us both to arbitration (or small claims court, if a claim qualifies) in all instances.
YOU AND MARTOOK AGREE THAT ALL DISPUTES BETWEEN US THAT WE CANNOT RESOLVE INFORMALLY MUST BE RESOLVED ON AN INDIVIDUAL BASIS ONLY, BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT.
YOU AND MARTOOK FURTHER AGREE TO WAIVE ALL RIGHTS WE MAY HAVE TO A TRIAL BY JURY OR TO LITIGATE OUR DISPUTES IN COURTS OTHER THAN SMALL CLAIMS COURT.
YOU AND MARTOOK ALSO AGREE TO WAIVE ALL RIGHTS TO PARTICIPATE IN ANY WAY IN A CLASS ACTIONS/CLASS ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS, OR OTHERWISE TO ASSERT OR PROCEED WITH ANY CLAIM AGAINST EACH OTHER ON A COLLECTIVE OR CONSOLIDATED BASIS. IN THIS REGARD, NO ARBITRATION BETWEEN US WILL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY.
This arbitration requirement extends to MARTOOK agents, attorneys, representatives, employees, service providers, and suppliers, including all affiliated companies (including parents, subsidiaries, and sibling corporations), and our respective heirs, successors, and assigns.
You and MARTOOK agree that any claim between us involves commerce under and is governed exclusively by the Federal Arbitration Act (the “FAA”), and not by any state or local laws which might place limits on the scope or availability of arbitration or way imposing requirements beyond or inconsistent with the FAA.
If for any reason this arbitration agreement between us does not apply or is not enforceable, despite our mutual intention that it apply fully to all of our disputes, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in New York, New York (except for small claims court actions which may be brought in the county where you reside). In such cases, the parties expressly consent to exclusive jurisdiction in New York, New York for any litigation other than small claims court actions.
Arbitration: Scope, Rules, and Requirements
You and MARTOOK understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial.
There is no judge or jury in arbitration, and discovery and court review of an arbitration award are limited. However, under this agreement, an arbitrator can award on an individual basis the same damages and other relief as a court and must follow these Terms just as a court would.
The arbitration or small claims court action (if the latter is available and elected by either of us) shall occur in the United States in the county or parish where you reside unless you agree otherwise. You may also choose to have any arbitration, whether commenced by you or us, conducted by telephone, by video conference, or on written submissions only.
The arbitrator and small claims court (if the latter is available and elected by either of us), alone, have the authority to and shall resolve all claims and issues of any nature arising out of or related in any way to your access to or use of the Website and your interactions of any kind with MARTOOK. This includes, but is not limited, all claims arising under international, federal, state, and local statutory, regulatory, constitutional, and common law claims, including, but not limited to, claims sounding in negligence, whatever their nature.
For purposes of clarity, but not as a limitation of any kind, this clause covers any and all claims related to or arising out of the content or operation of the Website, your visits to the Website, your purchases (or attempted purchases) from MARTOOK, your requests to receive advertising or promotions from MARTOOK, your participation in any contests, special offers, coupon or discount promotions offered by MARTOOK, and all communications occurring as result of, in relating in any way to, your use of our website, or any other interactions between us.
We are committed to providing for dispute resolution at a reasonable cost to consumers consistent with the Rules, and any matters relating to such cost, if not agreed to here or addressed by the Rules, will be decided by the arbitrator.
In arbitration and in small claims court, recovery of attorney fees by either parties shall be consistent with, but not exceed, the right to recover such fees under applicable law. This agreement, however, does not create an independent right to recover attorneys‘ fees.
This arbitration agreement, and all of the rights, obligations, and requirements it contains, shall be interpreted without reference to any other provisions of the Terms. To the extent that any other provision of the Terms is found to be inconsistent in any way with the rights, duties, and requirements of this arbitration agreement, and where the application of such a provision would change or render unenforceable any part of this arbitration agreement, such provision shall be null and void to the extent necessary to preserve and protect this agreement to arbitrate our disputes.