Terms and Conditions of Marshmallo
These Terms govern
the use of Marshmallo, and,
any other related Agreement or legal relationship with the Owner
in a legally binding way. Capitalized words are defined in the relevant dedicated section of this document.
The User must read this document carefully.
Although the entire contractual relationship relating to these Products is entered into solely by the Owner and Users, Users acknowledge and agree that, where Marshmallo has been provided to them via the Apple App Store, Apple may enforce these Terms as a third-party beneficiary.
Nothing in these Terms creates any relationship of employment, agency, or partnership between the involved parties.
Marshmallo is provided by:
Marshmallo LLC
30 N Gould Street, Suite 6712
Sheridan, WY 82801
Owner contact email: datacontroller@marshmallo.com
"Marshmallo" refers to
this website, including its subdomains and any other website through which the Owner makes its Service available;
applications for mobile, tablet and other smart device systems;
the Service;
any applications, sample and content files, source code, scripts, instruction sets or software included as part of the Service, as well as any related documentation;
The following documents are incorporated by reference into these Terms:
Marshmallo Guidelines (https://marshmallo.com/guidelines)
What the User should know at a glance
Usage of Marshmallo and the Service is age restricted, as detailed in the relevant section of this document.
The Service/Marshmallo is only intended for Consumers.
The right of withdrawal only applies to European Consumers.
TERMS OF USE
Unless otherwise specified, the terms of use detailed in this section apply generally when using Marshmallo.
Single or additional conditions of use or access may apply in specific scenarios and in such cases are additionally indicated within this document.
By using Marshmallo, Users confirm to meet the following requirements:
Users must qualify as Consumers;
Users must be older than 17;
Users aren’t located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist-supporting” country;
Users aren’t listed on any U.S. Government list of prohibited or restricted parties;
Account registration
To use the Service Users must register or create a User account, providing all required data or information in a complete and truthful manner.
Failure to do so will cause unavailability of the Service.
Users are responsible for keeping their login credentials confidential and safe. For this reason, Users are also required to choose passwords that meet the highest standards of strength permitted by Marshmallo.
By registering, Users agree to be fully responsible for all activities that occur under their username and password.
Users are required to immediately and unambiguously inform the Owner via the contact details indicated in this document, if they think their personal information, including but not limited to User accounts, access credentials or personal data, have been violated, unduly disclosed or stolen.
Conditions for account registration
Registration of User accounts on Marshmallo is subject to the conditions outlined below. By registering, Users agree to meet such conditions.
Accounts registered by bots or any other automated methods are not permitted.
Unless otherwise specified, each User must register only one account.
Unless explicitly permitted, a User account may not be shared with other persons.
Account termination
Users can terminate their account and stop using the Service at any time by doing the following:
By using the tools provided for account termination on Marshmallo.
Account suspension and deletion
The Owner reserves the right, at its sole discretion, to suspend or delete at any time and without notice, User accounts which it deems inappropriate, offensive or in violation of these Terms.
The suspension or deletion of User accounts shall not entitle Users to any claims for compensation, damages or reimbursement.
The suspension or deletion of accounts due to causes attributable to the User does not exempt the User from paying any applicable fees or prices.
Content on Marshmallo
Unless where otherwise specified or clearly recognizable, all content available on Marshmallo is owned or provided by the Owner or its licensors.
The Owner undertakes its utmost effort to ensure that the content provided on Marshmallo infringes no applicable legal provisions or third-party rights. However, it may not always be possible to achieve such a result.
In such cases, without prejudice to any legal prerogatives of Users to enforce their rights, Users are kindly asked to preferably report related complaints using the contact details provided in this document.
Rights regarding content on Marshmallo - All rights reserved
The Owner holds and reserves all intellectual property rights for any such content.
Users may not therefore use such content in any way that is not necessary or implicit in the proper use of the Service.
In particular, but without limitation, Users may not copy, download, share (beyond the limits set forth below), modify, translate, transform, publish, transmit, sell, sublicense, edit, transfer/assign to third parties or create derivative works from the content available on Marshmallo, nor allow any third party to do so through the User or their device, even without the User's knowledge.
Where explicitly stated on Marshmallo, the User may download, copy and/or share some content available through Marshmallo for its sole personal and non-commercial use and provided that the copyright attributions and all the other attributions requested by the Owner are correctly implemented.
Any applicable statutory limitation or exception to copyright shall stay unaffected.
Content provided by Users
The Owner allows Users to upload, share or provide their own content to Marshmallo.
By providing content to Marshmallo, Users confirm that they are legally allowed to do so and that they are not infringing any statutory provisions and/or third-party rights.
Further insights regarding acceptable content can be found inside the respective section on Marshmallo which details the acceptable uses.
Rights regarding content provided by Users
Users acknowledge and accept that by providing their own content on Marshmallo they grant the Owner a non-exclusive, fully paid-up and royalty-free license to process such content solely for the operation and maintenance of Marshmallo as contractually required.
To the extent permitted by applicable law, Users waive any moral rights in connection with content they provide to Marshmallo.
Users are solely liable for any content they upload, post, share, or provide through Marshmallo.
Users acknowledge and accept that the Owner filters or moderates such content after it has been made available.
Therefore, the Owner reserves the right to refuse, remove, delete, or block such content at its own discretion and to deny access to Marshmallo to the uploading User without prior notice, if it considers such content to infringe these Terms, any applicable legal provision or third-party right, or to otherwise represent a risk for Users, third parties, the Owner and/or the availability of the Service.
The removal, deletion or blocking of content shall not entitle Users that have provided such content or that are liable for it, to any claims for compensation, damages or reimbursement.
Users agree to hold the Owner harmless from and against any claim asserted and/or damage suffered due to content they provided to or provided through Marshmallo.
Removal of content from parts of Marshmallo available through the App Store
If the reported content is deemed objectionable, it will be removed within 24 hours and the User who provided the content will be barred from using the Service.
Access to provided content
Content that Users provide to Marshmallo is made available according to the criteria outlined within this section.
Publicly available content
Content meant for public availability shall be automatically made public on Marshmallo upon upload or, at the sole discretion of the Owner, at a later stage.
Any personal data, identifier or any other information that Users upload in connection with such content (such as a User-ID, avatar or nickname etc.) shall also appear in connection with the published content.
Users may (and are encouraged to) check on Marshmallo to find details of who can access the content they provide.
Access to external resources
Through Marshmallo Users may have access to external resources provided by third parties. Users acknowledge and accept that the Owner has no control over such resources and is therefore not responsible for their content and availability.
Conditions applicable to any resources provided by third parties, including those applicable to any possible grant of rights in content, result from each such third parties’ terms and conditions or, in the absence of those, applicable statutory law.
How to file a takedown notice (called a “DMCA notice”)
If copyright holders or their agents believe that any content on Marshmallo infringes upon their copyrights, they may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing the Owner’s Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
A physical or electronic signature of a person authorized to act on behalf of the holder of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the Owner to locate the material;
Information reasonably sufficient to permit the Owner to contact the notifying party, such as an address, telephone number, and, if available, an electronic mail;
A statement that the notifying party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the notifying party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Failure to comply with all of the requirements outlined above may result in invalidity of the DMCA notice.
Copyright infringement notifications may be submitted to the Owner’s Copyright Agent at the following address:
datacontroller@marshmallo.com
Acceptable use
Marshmallo and the Service may only be used within the scope of what they are provided for, under these Terms and applicable law.
Users are solely responsible for making sure that their use of Marshmallo and/or the Service violates no applicable law, regulations or third-party rights.
Therefore, the Owner reserves the right to take any appropriate measure to protect its legitimate interests including by denying Users access to Marshmallo or the Service, terminating contracts, reporting any misconduct performed through Marshmallo or the Service to the competent authorities – such as judicial or administrative authorities - whenever Users engage or are suspected to engage in any of the following activities:
violate laws, regulations and/or these Terms;
infringe any third-party rights;
considerably impair the Owner’s legitimate interests;
offend the Owner or any third party.
TERMS AND CONDITIONS OF SALE
Paid Products
Some of the Products provided on Marshmallo, as part of the Service, are provided on the basis of payment.
The fees, duration and conditions applicable to the purchase of such Products are described below and in the dedicated sections of Marshmallo.
Product description
Prices, descriptions or availability of Products are outlined in the respective sections of Marshmallo and are subject to change without notice.
While Products on Marshmallo are presented with the greatest accuracy technically possible, representation on Marshmallo through any means (including, as the case may be, graphic material, images, colors, sounds) is for reference only and implies no warranty as to the characteristics of the purchased Product.
The characteristics of the chosen Product will be outlined during the purchasing process.
Purchasing process
Any steps taken from choosing a Product to order submission form part of the purchasing process.
The purchasing process includes these steps:
Users must choose the desired Product and verify their purchase selection.
After having reviewed the information displayed in the purchase selection, Users may place the order by submitting it.
Order submission
When the User submits an order, the following applies:
The submission of an order determines contract conclusion and therefore creates for the User the obligation to pay the price, taxes and possible further fees and expenses, as specified on the order page.
In case the purchased Product requires an action from the User, such as the provision of personal information or data, specifications or special wishes, the order submission creates an obligation for the User to cooperate accordingly.
Upon submission of the order, Users will receive a receipt confirming that the order has been received.
Prices
Users are informed during the purchasing process and before order submission, about any fees, taxes and costs (including, if any, delivery costs) that they will be charged.
Prices on Marshmallo are displayed:
excluding any applicable fees, taxes and costs.
Offers and discounts
The Owner may offer discounts or provide special offers for the purchase of Products. Any such offer or discount shall always be subject to the eligibility criteria and the terms and conditions set out in the corresponding section of Marshmallo.
Offers and discounts are always granted at the Owner’s sole discretion.
Repeated or recurring offers or discounts create no claim/title or right that Users may enforce in the future.
Depending on the case, discounts or offers shall be valid for a limited time only or while stocks last. If an offer or discount is limited by time, the time indications refer to the time zone of the Owner, as indicated in the Owner’s location details in this document, unless otherwise specified.
Methods of payment
Information related to accepted payment methods are made available during the purchasing process.
Some payment methods may only be available subject to additional conditions or fees. In such cases related information can be found in the dedicated section of Marshmallo.
All payments are independently processed through third-party services. Therefore, Marshmallo does not collect any payment information – such as credit card details – but only receives a notification once the payment has been successfully completed.
If a payment through the available methods fails or is refused by the payment service provider, the Owner shall be under no obligation to fulfill the purchase order. If a payment fails or is refused, the Owner reserves the right to claim any related expenses or damages from the User.
Retention of Product ownership
Until payment of the total purchase price is received by the Owner, any Products ordered shall not become the User’s property.
Retention of usage rights
Users do not acquire any rights to use the purchased Product until the total purchase price is received by the Owner.
Delivery
Delivery of digital content
Unless otherwise stated, digital content purchased on Marshmallo is delivered via download on the device(s) chosen by Users.
Users acknowledge and accept that in order to download and/or use the Product, the intended device(s) and its respective software (including operating systems) must be legal, commonly used, up-to-date, and consistent with current market-standards.
Users acknowledge and accept that the ability to download the purchased Product may be limited in time and space.
Contract duration
Trial period
Users have the option to test Marshmallo or selected Products during a limited and non-renewable trial period, at no cost. Some features or functions of Marshmallo may not be available to Users during the trial period.
Further conditions applicable to the trial period, including its duration, will be specified on Marshmallo.
The trial period shall end automatically and shall not convert into any paid Product unless the User actively purchases such paid Product.
Subscriptions
Subscriptions allow Users to receive a Product continuously or regularly over time. Details regarding the type of subscription and termination are outlined below.
Subscriptions handled via Apple ID
Users may subscribe to a Product using the Apple ID associated with their Apple App Store account by using the relevant process on Marshmallo. When doing so, Users acknowledge and accept that
any payment due shall be charged to their Apple ID account;
subscriptions are automatically renewed for the same duration unless the User cancels at least 24 hours before the current period expires;
any and all fees or payments due for renewal will be charged within 24-hours before the end of the current period;
subscriptions can be managed or cancelled in the Users’ Apple App Store account settings.
The above shall prevail upon any conflicting or diverging provision of these Terms.
Termination
Subscriptions may be terminated by sending a clear and unambiguous termination notice to the Owner using the contact details provided in this document, or — if applicable — by using the corresponding controls inside Marshmallo.
Terms and conditions applying to extra features
Users that have an active subscription may purchase single extra add-ons or features, described in the relevant section of Marshmallo.
Unless otherwise specified, such extras are subject to the same terms applicable to the main Product, including all provisions of this document.
User rights
Right of withdrawal
Unless exceptions apply, the User may be eligible to withdraw from the contract within the period specified below (generally 14 days), for any reason and without justification. Users can learn more about the withdrawal conditions within this section.
Who the right of withdrawal applies to
Unless any applicable exception is mentioned below, Users who are European Consumers are granted a statutory cancellation right under EU rules, to withdraw from contracts entered into online (distance contracts) within the specified period applicable to their case, for any reason and without justification.
Users that do not fit this qualification, cannot benefit from the rights described in this section.
Exercising the right of withdrawal
To exercise their right of withdrawal, Users must send to the Owner an unequivocal statement of their intention to withdraw from the contract.
To this end, Users may use the model withdrawal form available from within the “definitions” section of this document. Users are, however, free to express their intention to withdraw from the contract by making an unequivocal statement in any other suitable way. In order to meet the deadline within which they can exercise such right, Users must send the withdrawal notice before the withdrawal period expires.
When does the withdrawal period expire?
In case of purchase of a digital content not supplied in a tangible medium, the withdrawal period expires 14 days after the day that the contract is entered into, unless the User has waived the withdrawal right.
Effects of withdrawal
Users who correctly withdraw from a contract will be reimbursed by the Owner for all payments made to the Owner, including, if any, those covering the costs of delivery.
However, any additional costs resulting from the choice of a particular delivery method other than the least expensive type of standard delivery offered by the Owner, will not be reimbursed.
Such reimbursement shall be made without undue delay and, in any event, no later than 14 days from the day on which the Owner is informed of the User’s decision to withdraw from the contract. Unless otherwise agreed with the User, reimbursements will be made using the same means of payment as used to process the initial transaction. In any event, the User shall not incur any costs or fees as a result of such reimbursement.
Exceptions from the right of withdrawal
The right of withdrawal does not apply to contracts:
for the supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and with their acknowledgment that their right of withdrawal is thereby lost;
for the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items;
for the provision of services, after the service has been fully performed if the performance has begun with the consumer’s prior express consent, and with their acknowledgement that their right of withdrawal is lost once the contract has been fully performed;
Liability and indemnification
Indemnification
The User agrees to indemnify and hold the Owner and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners and employees harmless from and against any claim or demand — including but not limited to lawyer's fees and costs — made by any third party due to or in relation with any culpable use of or connection to the Service, violation of these Terms, infringement of any third-party rights or statutory provision by the User or its affiliates, officers, directors, agents, co-branders, partners and employees to the extent allowed by applicable law.
Limitation of liability
Unless otherwise explicitly stated and without prejudice to applicable statutory product liability provisions, Users shall have no right to claim damages against the Owner (or any natural or legal person acting on its behalf).
This does not apply to damages to life, health or physical integrity, damages resulting from the breach of an essential contractual obligation such as any obligation strictly necessary to achieve the purpose of the contract, and/or damages resulting from intent or gross negligence, as long as Marshmallo has been appropriately and correctly used by the User.
Unless damages have been caused by way of intent or gross negligence, or they affect life, health or physical integrity, the Owner shall only be liable to the extent of typical and foreseeable damages at the moment the contract was entered into.
In particular, within the limits stated above, the Owner shall not be liable for:
any losses that are not the direct consequence of a breach of the Terms by the Owner;
any loss of business opportunities and any other loss, even indirect, that may be incurred by the User (such as, but not limited to, trading losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, etc.);
damages or losses resulting from interruptions or malfunctions of Marshmallo due to acts of force majeure, or unforeseen and unforeseeable events and, in any case, independent of the will and beyond the control of the Owner, such as, but not limited to, failures or disruptions of telephone or electrical lines, the Internet and / or other means of transmission, unavailability of websites, strikes, natural disasters, viruses and cyber attacks, interruptions in the delivery of products, third-party services or applications;
Australian Users
Limitation of liability
Nothing in these Terms excludes, restricts or modifies any guarantee, condition, warranty, right or remedy which the User may have under the Competition and Consumer Act 2010 (Cth) or any similar State and Territory legislation and which cannot be excluded, restricted or modified (non-excludable right). To the fullest extent permitted by law, our liability to the User, including liability for a breach of a non-excludable right and liability which is not otherwise excluded under these Terms of Use, is limited, at the Owner’s sole discretion, to the re-performance of the services or the payment of the cost of having the services supplied again.
US Users
Disclaimer of Warranties
Marshmallo is provided strictly on an “as is” and “as available” basis. Use of the Service is at Users’ own risk. To the maximum extent permitted by applicable law, the Owner expressly disclaims all conditions, representations, and warranties — whether express, implied, statutory or otherwise, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights. No advice or information, whether oral or written, obtained by user from owner or through the Service will create any warranty not expressly stated herein.
Without limiting the foregoing, the Owner, its subsidiaries, affiliates, licensors, officers, directors, agents, co-branders, partners, suppliers and employees do not warrant that the content is accurate, reliable or correct; that the Service will meet Users’ requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at users own risk and users shall be solely responsible for any damage to Users’ computer system or mobile device or loss of data that results from such download or Users’ use of the Service.
The Owner does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and the Owner shall not be a party to or in any way monitor any transaction between Users and third-party providers of products or services.
The Service may become inaccessible or it may not function properly with Users’ web browser, mobile device, and/or operating system. The owner cannot be held liable for any perceived or actual damages arising from Service content, operation, or use of this Service.
Federal law, some states, and other jurisdictions, do not allow the exclusion and limitations of certain implied warranties. The above exclusions may not apply to Users. This Agreement gives Users specific legal rights, and Users may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement shall not apply to the extent prohibited by applicable law.
Limitations of liability
To the maximum extent permitted by applicable law, in no event shall the Owner, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees be liable for
any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service; and
any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or User account or the information contained therein;
any errors, mistakes, or inaccuracies of content;
personal injury or property damage, of any nature whatsoever, resulting from User access to or use of the Service;
any unauthorized access to or use of the Owner’s secure servers and/or any and all personal information stored therein;
any interruption or cessation of transmission to or from the Service;
any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service;
any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or
the defamatory, offensive, or illegal conduct of any User or third party. In no event shall the Owner, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees be liable for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount paid by User to the Owner hereunder in the preceding 12 months, or the period of duration of this agreement between the Owner and User, whichever is shorter.
This limitation of liability section shall apply to the fullest extent permitted by law in the applicable jurisdiction whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if company has been advised of the possibility of such damage.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, therefore the above limitations or exclusions may not apply to User. The terms give User specific legal rights, and User may also have other rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under the terms shall not apply to the extent prohibited by applicable law.
Indemnification
The User agrees to defend, indemnify and hold the Owner and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees harmless from and against any and all claims or demands, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, legal fees and expenses, arising from
User’s use of and access to the Service, including any data or content transmitted or received by User;
User’s violation of these terms, including, but not limited to, User’s breach of any of the representations and warranties set forth in these terms;
User’s violation of any third-party rights, including, but not limited to, any right of privacy or intellectual property rights;
User’s violation of any statutory law, rule, or regulation;
any content that is submitted from User’s account, including third party access with User’s unique username, password or other security measure, if applicable, including, but not limited to, misleading, false, or inaccurate information;
User’s wilful misconduct; or
statutory provision by User or its affiliates, officers, directors, agents, co-branders, partners, suppliers and employees to the extent allowed by applicable law.
Common provisions
No Waiver
The Owner’s failure to assert any right or provision under these Terms shall not constitute a waiver of any such right or provision. No waiver shall be considered a further or continuing waiver of such term or any other term.
Service interruption
To ensure the best possible service level, the Owner reserves the right to interrupt the Service for maintenance, system updates or any other changes, informing the Users appropriately.
Within the limits of law, the Owner may also decide to suspend or discontinue the Service altogether. If the Service is discontinued, the Owner will cooperate with Users to enable them to withdraw Personal Data or information and will respect Users' rights relating to continued product use and/or compensation, as provided for by applicable law.
Additionally, the Service might not be available due to reasons outside the Owner’s reasonable control, such as “force majeure” events( infrastructural breakdowns or blackouts etc.).
Service reselling
Users may not reproduce, duplicate, copy, sell, resell or exploit any portion of Marshmallo and of its Service without the Owner’s express prior written permission, granted either directly or through a legitimate reselling programme.
Privacy policy
To learn more about the use of their Personal Data, Users may refer to the privacy policy of Marshmallo.
Intellectual property rights
Without prejudice to any more specific provision of these Terms, any intellectual property rights, such as copyrights, trademark rights, patent rights and design rights related to Marshmallo are the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties relating to intellectual property.
All trademarks — nominal or figurative — and all other marks, trade names, service marks, word marks, illustrations, images, or logos appearing in connection with Marshmallo are, and remain, the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties related to intellectual property.
Changes to these Terms
The Owner reserves the right to amend or otherwise modify these Terms at any time. In such cases, the Owner will appropriately inform the User of these changes.
Such changes will only affect the relationship with the User from the date communicated to Users onwards.
The continued use of the Service will signify the User’s acceptance of the revised Terms. If Users do not wish to be bound by the changes, they must stop using the Service and may terminate the Agreement.
The applicable previous version will govern the relationship prior to the User's acceptance. The User can obtain any previous version from the Owner.
If legally required, the Owner will notify Users in advance of when the modified Terms will take effect.
Assignment of contract
The Owner reserves the right to transfer, assign, dispose of by novation, or subcontract any or all rights or obligations under these Terms, taking the User’s legitimate interests into account. Provisions regarding changes of these Terms will apply accordingly.
Users may not assign or transfer their rights or obligations under these Terms in any way, without the written permission of the Owner.
Contacts
All communications relating to the use of Marshmallo must be sent using the contact information stated in this document.
Severability
Should any provision of these Terms be deemed or become invalid or unenforceable under applicable law, the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
US Users
Any such invalid or unenforceable provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent. These Terms constitute the entire Agreement between Users and the Owner with respect to the subject matter hereof, and supersede all other communications, including but not limited to all prior agreements, between the parties with respect to such subject matter. These Terms will be enforced to the fullest extent permitted by law.
EU Users
Should any provision of these Terms be or be deemed void, invalid or unenforceable, the parties shall do their best to find, in an amicable way, an agreement on valid and enforceable provisions thereby substituting the void, invalid or unenforceable parts.
In case of failure to do so, the void, invalid or unenforceable provisions shall be replaced by the applicable statutory provisions, if so permitted or stated under the applicable law.
Without prejudice to the above, the nullity, invalidity or the impossibility to enforce a particular provision of these Terms shall not nullify the entire Agreement, unless the severed provisions are essential to the Agreement, or of such importance that the parties would not have entered into the contract if they had known that the provision would not be valid, or in cases where the remaining provisions would translate into an unacceptable hardship on any of the parties.
Governing law
These Terms are governed by the law of the following jurisdiction, without regard to conflict of laws principles and rules:
Wyoming
Prevalence of national law
However, regardless of the above, if the law of the country that the User is located in provides for a higher applicable consumer protection standard, such higher standards shall prevail.
Venue of jurisdiction
The exclusive competence to decide on any controversy resulting from or connected to these Terms lies with the courts of the place where the Owner is based, as displayed in the relevant section of this document.
Exception for Consumers in Europe
The above does not apply to any Users that qualify as European Consumers, nor to Consumers based in the United Kingdom, Switzerland, Norway or Iceland.
UK Consumers
Consumers based in England and Wales may bring legal proceedings in connection with these Terms in the English and Welsh courts. Consumers based in Scotland may bring legal proceedings in connection with these Terms in either the Scottish or the English courts. Consumers based in Northern Ireland may bring legal proceedings in connection with these Terms in either the Northern Irish or the English courts.
US Users
Each party specifically waives any right to trial by jury in any court in connection with any action or litigation.
Any claims under these terms shall proceed individually and no party shall join in a class action or other proceeding with or on behalf of others.
US Users
Surviving provisions
This Agreement shall continue in effect until it is terminated by either Marshmallo or the User. Upon termination, the provisions contained in these Terms that by their context are intended to survive termination or expiration will survive, including but not limited to the following:
the User’s grant of licenses under these Terms shall survive indefinitely;
the User’s indemnification obligations shall survive for a period of five years from the date of termination;
the disclaimer of warranties and representations, and the stipulations under the section containing indemnity and limitation of liability provisions, shall survive indefinitely.
Dispute resolution
Amicable dispute resolution
Users may bring any disputes to the Owner who will try to resolve them amicably.
While Users' right to take legal action shall always remain unaffected, in the event of any controversy regarding the use of Marshmallo or the Service, Users are kindly asked to contact the Owner at the contact details provided in this document.
The User may submit the complaint including a brief description and if applicable, the details of the related order, purchase, or account, to the Owner’s email address specified in this document.
The Owner will process the complaint without undue delay and within 3 days of receiving it.
Online dispute resolution for Consumers
The European Commission has established an online platform for alternative dispute resolutions that facilitates an out-of-court method for solving disputes related to and stemming from online sale and service contracts.
As a result, any European Consumer or Consumer based in Norway, Iceland, or Liechtenstein can use such platform for resolving disputes stemming from contracts which have been entered into online. The platform is available at the following link.
Germany: Dispute resolution procedure with Consumer conciliation boards
The Owner does not participate in alternative dispute resolution procedures for Consumers under the German Verbraucherstreitbeilegungsgesetz.
France: Mediation
Within one year of submitting a written complaint to the Owner regarding any dispute stemming from these Terms, Consumers have the right to initiate a mediation procedure before
any mediation body approved by the French Government. The relevant list is available at the following link: https://www.economie.gouv.fr/mediation-conso/mediateurs-references.
Definitions and legal references
Marshmallo (or this Application)
The property that enables the provision of the Service.
Agreement
Any legally binding or contractual relationship between the Owner and the User, governed by these Terms.
European (or Europe)
Applies where a User, regardless of nationality, is in the EU.
Example withdrawal form
Addressed to:
Marshmallo LLC 30 N Gould Street, Suite 6712 Sheridan, WY 82801
datacontroller@marshmallo.com
I/We hereby give notice that I/we withdraw from my/our contract of sale of the following goods/for the provision of the following service:
_____________________________________________ (insert a description of the goods/services that are subject to the respective withdrawal)
Ordered on: _____________________________________________ (insert the date)
Received on: _____________________________________________ (insert the date)
Name of consumer(s):_____________________________________________
Address of consumer(s):_____________________________________________
Date: _____________________________________________
(sign if this form is notified on paper)
Owner (or We)
Indicates the natural person(s) or legal entity that provides Marshmallo and/or the Service to Users.
Product
A good or service available for purchase through Marshmallo, such as e.g. physical goods, digital files, software, booking services etc.
The sale of Products may be part of the Service.
Service
The service provided by Marshmallo as described in these Terms and on Marshmallo.
Terms
All provisions applicable to the use of Marshmallo and/or the Service as described in this document, including any other related documents or agreements, and as updated from time to time.
User (or You)
Indicates any natural person or legal entity using Marshmallo.
Consumer
Consumer is any User qualifying as such under applicable law.
Latest update: June 16, 2023
Addendum
Background Checks and User Verification
By agreeing to these terms and conditions, you hereby consent and authorize Marshmallo and its authorized agents to conduct background checks on you at any time after registration. This may include, but is not limited to, checking public databases, social media platforms, and criminal records to verify your identity and ensure the safety and authenticity of our user base.
You understand and agree that while Marshmallo strives to create a safe environment, we cannot guarantee the accuracy, completeness, or timeliness of any background check. Furthermore, we do not guarantee that all users have undergone such checks. Always exercise caution and use your discretion when interacting with other users, both on our platform and offline.
By using our services, you acknowledge that such checks may involve sharing some of your personal information with third-party service providers. For more details about how we handle and protect your data, please refer to our Privacy Policy.
Disclaimer Regarding Registered Sex Offenders
At Marshmallo, the safety and well-being of our community is of paramount importance to us. We make a good faith effort to vet our users and take reasonable measures to try to exclude registered sex offenders from joining our platform. However, due to the nature and limitations of background checks, we cannot guarantee or represent that no registered sex offender will ever gain access to the Marshmallo app or its associated services.
Users are encouraged to always exercise caution, take safety precautions, and use their best judgment when interacting with others on the platform. Marshmallo is not responsible for the actions of its users and cannot guarantee the accuracy or completeness of any user's background or history.
By using the Marshmallo app, you understand and agree that Marshmallo and its affiliates, officers, employees, agents, and partners shall not be held liable for any claims, damages, or losses resulting from interactions with other users, regardless of their background or history.
Account Deletion
To allow for the possibility of account reactivation and to ensure the safety of our community, your data and account information will be retained in our systems for a period of up to one year from the date of your deletion request.
This retention period allows you the flexibility to reinstate your account within that year without losing any previous data or interactions. During this period, your data will remain secure but may be used by Marshmallo for the purposes of investigating any incidents or claims related to interactions initiated on our platform.
After the one-year retention period, all personal data associated with your account will be permanently removed from our databases, unless we are legally obligated to retain certain information for a longer period.
By using our services, you acknowledge and consent to this data retention practice. For further information on how we handle your personal data, please refer to our Privacy Policy.