Terms of Use Agreement - Leman Mercer Corporation

Welcome to our website. This Terms of Use agreement (“Terms”) is between you (“you” or “your”) and Leman Mercer Corporation (“we,” “our,” “us,” or “Leman Mercer”), and governs your access to and use of our website located at www.lemanmercer.com (and any successor site thereto) (the “Site”) and related services, including Leman Mercer’s sale services and the Content (as defined below), the “Services.” Each Site is a copyrighted work belonging to us. Certain features of the Sites may be subject to additional guidelines, terms, or rules, which will be posted on the applicable Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.

THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF EACH SITE. BY ACCESSING OR USING A SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE ANY SITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITES.

Changes. We may, at any time and without liability, suspend, modify, or discontinue all or part of the Services (including access to the Site via any third-party links). We encourage you to check our Site periodically for the most current Service offerings. Similarly, we may update the Content, including descriptions and specifications about Products or Services, and we reserve the right to remove any Content at any time, for any reason, in our sole discretion, and without notice. Leman Mercer will have no liability for any change in the Services, or any suspension or termination of your access to Services.

We also reserve the right to change these Terms at any time by notifying you of such changes by any reasonable means, including by posting the revised Terms on the Site. The “Last Updated” legend above indicates when these Terms were last changed. At our discretion, we may also notify you of certain changes by sending you an email to the email address provided to Leman Mercer. Your continued use of the Services, including purchasing Products from us, following any changes to these Terms will indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. Any changes to the Terms will not apply to any dispute between you and us that arises prior to the date on which we posted the revised Terms incorporating such changes, or otherwise notified you of such changes. If you do not agree with the new Terms, you may no longer access or use the Services.

Privacy. Your visit to our site is also governed by our Privacy Policy. Please review our Privacy Policy at Privacy Policy – Leman Mercer (lemanmercer.com).

Sales. If you purchase a Product through the Services, the purchase price for such Product (“Purchase Price”) will be equal to the purchase fee, applicable taxes, and shipping and delivery charges listed on the Service for the applicable Product at the time of purchase. Leman Mercer, at its discretion and without notice, reserves the right to alter the price of the Product in view of the amount or availability of any discount or the availability of any particular item. You authorize us (or our third-party payment processor) to charge you Payment Method for the Purchase Price when you purchase Products, and we will charge your Payment Method the amount of the Purchase Price. We do not make, and expressly disclaim, any warranties of any kind with respect to any Product that you purchase, and such Product is provided on an “AS IS” basis.

Shipping. Please review our Shipping Policy at Shipping & Delivery – Leman Mercer (lemanmercer.com).

Returns. Please review our Return Policy at Terms & Conditions – Leman Mercer (lemanmercer.com).

Ownership. All Content (defined below) included on this Site is and shall continue to be the property of Leman Mercer or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights (“IP”). Any copying, redistribution, use or publication by you of any such Content or any part of the Site is prohibited, except as expressly permitted in these Terms. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this Site.

Intended Audience. The Sites are intended for adults only. The Sites are not intended for any children under the age of 13.

Trademarks. Leman Mercer™ and others are either pending trademarks or registered trademarks of Leman Mercer. Other product and company names mentioned on a Site may be trademarks of their respective owners.

Site Use. Leman Mercer grants you a limited, revocable, nonexclusive license to use this site solely for your own personal use and not for any commercial use, republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the Site, reverse engineer or break into the Site, or use materials, products or services in violation of any law. The use of this website is at our discretion and we may terminate your use of this Site at any time.

Content. Certain materials may be displayed or performed on the Sites (including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (collectively, “Content”)). You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Leman Mercer reserves the right to remove any Content from the Services at any time, 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 breached the immediately preceding sentence) or for no reason at all.

User Submissions. We may allow you and other users in our discretion to upload, post, or otherwise share to a Site Content, such as but not limited to photos, videos, audio files, feedback, comments, questions, or other information (collectively, “User Submissions”), all subject to other applicable provisions of these Terms. You are solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using the Sites, and you represent and warrant that you have all rights necessary to contribute your User Submissions in the manner in which you contribute them, including but not limited to all IP rights. You hereby grant to Leman Mercer an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, and transferable license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Submissions, including all associated IP, and to grant sublicenses of the foregoing rights. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. For clarity, the foregoing license grant to Leman Mercer does not affect your ownership of or right to grant additional (other than exclusive) licenses to the material in your User Submissions, unless otherwise agreed in writing. Leman Mercer may retain your Content even if you are no longer using the Services but is not required to provide copies of your Content to you. Leman Mercer may permanently delete or erase your Content or suspend your access to your User Submissions through the Services at any time and for any reason.

Your Warranty Regarding Your User Submissions and Use of Sites. You warrant, represent and agree that you will not contribute any User Submissions or otherwise use the Services in a manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, embarrassing, bullying, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Leman Mercer; (v) contains a virus, Trojan horse, worm, time bomb, back door, or other harmful computer code, file, or program; (vi) jeopardizes the security of any Leman Mercer’s Site, software, equipment, system, other user, or other resource; (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Mail list, Listserv, or any form of auto-responder or “spam” on the Site, or any processes that otherwise interfere with the proper working of the Sites (including by placing an unreasonable load on any Site’s infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Sites or any of Leman Mercer’s other services.

Responsibility for Content. All User Submissions that you publicly post or privately transmit through the Sites are your sole responsibility, and Leman Mercer will not be liable for any errors or omissions in any Content. Leman Mercer cannot guarantee the identity or intentions of any other users with whom you may interact in the course of using the Sites or the truth, accuracy, nature, or authenticity of any of their User Submissions. You acknowledge that all User Submissions accessed by you using the Sites are at your own risk, and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you or others may interpret and use the Content or what actions you or others may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.

Third Party Website Links and Referrals, Products, and Services. The Sites may contain links to other websites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors, and they and their products and services (“Third Party Products and Services”) are not under our control. Leman Mercer provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites, Referred Vendors, or Third Party Products and Services. Your use of these Third Party Sites, Referred Vendors, and Third Party Products and Services is at your own risk.

Linking to the Website and Social Media Features. You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

This Website may provide certain social media features that enable you to:

• Link from your own or certain third-party websites to certain content on this Website.
• Send e-mails or other communications with certain content, or links to certain content, on this Website.
• Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.

You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

• Establish a link from any website that is not owned by you.
• Cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
• Link to any part of the Website other than the homepage.
• Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Use.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with these Terms of Use.

Release Regarding Third Parties: Leman Mercer explicitly disclaims responsibility for third parties or their products and services, including App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. You release Leman Mercer and its licensors and suppliers from any past, present, and future claims, known or unknown, arising from or related to your interactions with such third parties. This includes a waiver of California Civil Code Section 1542, which states that a general release does not extend to claims unknown to the releasing party at the time of executing the release.

Couriers: Leman Mercer may engage third-party couriers ("Couriers") for product delivery. Couriers are independent contractors, not employees or agents of Leman Mercer. Leman Mercer holds no liability for Courier services, errors, or misrepresentations. Responsibility for product receipt at the specified delivery location rests with the user. Leman Mercer recommends providing a secure location for product receipt, and it disclaims liability for unattended products. Leman Mercer does not supervise, control, or monitor Courier services, and any disputes between users and Couriers are solely between the parties.

Ratings and Reviews: User ratings and reviews of products on the Leman Mercer platform are considered User Submissions governed by the Terms. These ratings and reviews are not endorsed by Leman Mercer, and the company disclaims liability for any claims, liabilities, or losses resulting from or related to ratings or reviews. Leman Mercer reserves the right to modify, remove, or exclude any rating and/or review at any time without notice.

Consent to Receive Periodic Messages: By using the Services, you consent to receiving communications from Leman Mercer, including informational text messages to the provided phone number. Standard text messaging and data rates may apply, and you can opt out of communications through specified procedures. Opting out may impact your use of the Services, and you are responsible for related charges. You agree to indemnify Leman Mercer for claims arising from your breach of communication-related terms.

Compliance with Laws: Users agree to comply with all applicable laws in their use of the Site, and information provided must be truthful and accurate.

Security: While Leman Mercer values the security of personal information, it does not guarantee the prevention of unauthorized third-party access or misuse. Users acknowledge providing personal information at their own risk.

Access Outside Certain Countries: The Sites are designed for use within the United States, and users outside the U.S. are advised not to provide personally identifiable information. Leman Mercer disclaims responsibility for damage or loss caused by accessing or using the Sites outside the United States, and users must comply with local laws. Users accessing the Sites from outside the U.S. are bound by the Terms.

Indemnification: Users agree to defend, indemnify, and hold harmless Leman Mercer and affiliates from claims related to violation of the Terms or Site use.

Assignment: Users may not assign these Terms without Leman Mercer's consent. Leman Mercer may transfer, assign, or delegate these Terms without user consent.

Disclaimer: Leman Mercer provides information on the Site, Services, Products, and Content on an "as is," "as available" basis. Leman Mercer disclaims all warranties, and users accept the risk associated with Site use. No advice obtained through the Services creates a warranty.

Limitation of Liability: Leman Mercer is not liable for direct, indirect, incidental, consequential, special, exemplary, or other damages arising from Site use or Content, even if advised of the possibility of such damages. Dissatisfaction with the Site and/or Content limits the user's remedy to discontinuing Site use.

Limitation on Time to File Claims: Any claim arising from or related to these Terms must be filed within one year, or it is permanently barred.

Applicable Law: California law governs these Terms, and any dispute between users and Leman Mercer or its affiliates.

Arbitration Agreement: Disputes between users and Leman Mercer are subject to binding arbitration under the U.S. Federal Arbitration Act. Users waive the right to a jury trial and class action participation. IP Claims, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of IP or confidential information are exempt from arbitration. Users may reject future changes to the Arbitration Agreement within 30 days of notice.

This section of the Agreement shall survive termination of the Terms.

Protection of Confidentiality and Intellectual Property Rights: Claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of IP or confidential information are not subject to the Arbitration Agreement ("IP Claims"). Either party may bring an individual action in small claims court, and such claims are exempt from arbitration. Users agree to the exclusive jurisdiction of state and federal courts in Los Angeles County, California, for IP Claims.

1. Use of Information. Leman Mercer reserves the right, and you authorize us, to use and assign all information regarding site uses by you and all information provided by you in any manner consistent with our Privacy Policy.
2. Copyrights and Copyright Agent. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law.If you believe in good faith that materials available on the Services infringe you copyright, you (or your agent) may send to Leman Mercer a written notice by mail or email requesting that Leman Mercer remove such material or block access to it.  If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Leman Mercer a counter-notice.  Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.  See www.copyright.gov for details.  Notices and counter-notices must be sent in writing to Leman Mercer as follows: by email to team@lemanmercer.com. 
3. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid under applicable Law in such jurisdiction, such provision or part thereof shall be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect, and will be deemed to not form part of the contract between us but only in such jurisdiction. The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect in all other jurisdictions.
4. You will be responsible for paying, withholding, filing, and reporting all federal, state, and local good taxes, duties, customs, levies, and other governmental assessment associated with your activity in connection with the Services, provide that Leman Mercer may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit.
5. The failure of Leman Mercer to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. Any waiver of these Terms by Leman Mercer must be in writing and signed by an authorized representative of Leman Mercer.
6. There may be delays, omissions, or inaccuracies in the Services, including the Content.  The Services may become unavailable due to maintenance or malfunction of computer equipment or other reasons.  You agree that Leman Mercer is not, and will not be, liable for any such delays, omissions, inaccuracies, or unavailability.
7. We may terminate these Terms at any time, with or without notice, for any reason.
8. Relationship of the Parties.Nothing contained in these Terms or your use of a Site shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
9. Electronic Communications.You are communicating with Leman Mercer electronically when you use the Sites or send an email to Leman Mercer. 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.
10. Force Majeure.Leman Mercer will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event or circumstance beyond our reasonable control, including, without limitation, acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riots, actual or threatened acts of terrorism, war, fire, explosion, storm, flood, earthquake or other natural disaster, loss of power or connectivity, interruption or delay in transportation or travel, equipment failure, accident, epidemic or other widespread disease, new government restrictions or regulations, shelter-in-place orders, quarantines, government shutdown, malfeasance or breach by third-party suppliers.
11. Headings are for convenience only and are not to be used in the interpretation of this Agreement. No part of these Term shall be construed in favor of, or against, a party as a consequence of a party having had a greater role in the preparation or drafting thereof, but shall be construed as if the language were mutually drafted by both parties with full assistance of counsel.
12. These Terms, and all content (whether or not a work made for hire) for which Leman Mercer owns the copyright, including on any Site or as provided through any Product or Service, is protected by applicable U.S. and foreign law. Copyright © 2021, Leman Mercer Corporation. All rights reserved. Any unauthorized use may be subject to prosecution.
13. Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Products and Services are the property of Leman Mercer or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Leman Mercer or such respective holders. Leman Mercer reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
14. Entire Agreement. This Terms of Use constitutes the entire agreement between you and Leman Mercer and governs the terms and conditions of your use of the Sites, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Leman Mercer with respect to this Site. Notwithstanding the foregoing, you may also be subject to additional terms and conditions, posted policies (including but not limited to the Privacy Policy), guidelines, or rules that may apply when you use a Site. Leman Mercer may revise these Terms of Use at any time by updating and posting these Terms on the Site. Accordingly, you should visit the Sites and review the applicable Terms periodically to determine if any changes have been made. Your continued use of a Site after any changes have been made to its Terms of Use signifies and confirms your acceptance of any such changes or amendments to such Terms.
15. Notice to New Jersey Consumers.If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law:(a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary, or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (b) the limitation of liability for loss profits or loss of misuse of any data (for example, to the extent unenforceable under New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c)  application of the limitation of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability, or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify Leman Mercer (for example, such indemnity is prohibited under New Jersey law); and (e)  the New York governing law (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law). 
16. Notice to Australian Consumers.As an consumer residing in Australia, the following terms apply and override any inconsistent terms in the Terms. 
17. Paragraph 25 – Disclaimers.The Warranty Disclaimer included within Paragraph 25 is modified by adding the following:

“However, the Site, Content, and the materials, products, and services on this Site come with certain guarantees that cannot be excluded for the benefit of Australian customers under Australian consumer law (“ACL”), including guarantees as to the acceptable quality and fitness of purpose of products.  Nothing in these Terms will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by the ACL and which by law cannot be excluded, restricted or modified, even if any other term of these Terms would otherwise suggest that this might be the case.”

46. Notice to Canadian Consumers.
47. Paragraph 1 – Changes. Paragraph 1 titled, “Changes” is qualified by the following:

“(a) Leman Mercer must send to you, at least thirty (30) days before the amendment comes into force, a written notice drawn up clearly and legibly, setting out the new clause and the date of the coming into force of the amendment; and

“(b) you may refuse the amendment and rescind or, in the case of a contract involving sequential performance, cancel the contract without cost, penalty or cancellation indemnity by sending Leman Mercer a notice to that effect no later than thirty (30) days after the amendment coms into force, if the amendment entails an increase in your obligations or a reduction in Leman Mercer’s obligations.”

1. Multiple Sections.The terms set forth in the section titled “Physical Activity”, “Warranty Disclaimer”, “Indemnification/Limitation of Liability”, and “Limitation of Liability” are qualified by the following:

“Consumer protection laws in some jurisdictions, including Quebec, do not allow for the limitations and exclusions of warranties on purchased products.  If these laws apply to you, the exclusions or limitations in the following section may not apply:  Physical Activity, Warranty Disclaimer, Indemnification/Limitation of Liability, and Limitation of Liability.”

29. Paragraphs 28 and 29.These sections are modified by adding the following at the beginning of the section:

“Consumer protection laws in some jurisdictions, such as Quebec, might require that your agreement be governed by the laws of your jurisdiction and heard by competent courts in your jurisdiction.  In addition, such laws may not allow you to waive your right to be part of a class action or to limit your time limitation to commence legal proceedings.  If these laws apply to you, the following limitations may not be applicable.”

47. Notice to French Consumers.
48. Paragraph 31.This paragraph is deleted in its entirety and replaced with the following:

“If you believe that your work has been improperly copied to the Site, such that it constitutes infringement, please provide us with the following information:

(1)  date of the notification;

(2) if the claimant is a natural person:  name, surname, profession, address, nationality, place and date of birth;

(3) if the claimant is a legal person:  name, form, registered office and the entity representing it for legal purposes;

(4) name and address of the recipient, or if a legal person, its name and registered office;

(5) a description of the facts at issue and the precise location;

(6) the grounds on which the content should be withdrawn, including relevant legal provisions and justification of facts; and

(7) a copy of the correspondence sent to the author or editor of the litigious information or activity requesting their interruption, withdrawal or modification or an explanation that the author or editor could not be contacted.”

1. Paragraph 23 – Indemnification.This paragraph is modified as follows:

“Indemnification.  You agree to indemnify, defend, and hold harmless Leman Mercer, its affiliates, officers, directors, employees, agents, licensors and suppliers (collectively, the “Leman Mercer Parties”) from and against all claims, losses, liabilities, expenses, damages ad costs, including, without limitation, attorneys’ fees, arising from or relating in any way to your User Content, your use of Content, your use of the Site, your conduct in connection with the Site or with other Site users, or any violation of these Terms of Use, any law or the rights of any third party.”

Leman Mercer Corporation

810 7^th Avenue

7^th Floor

New York, NY 10019