Merchant Terms of Use

THESE MODERN DESI TERMS OF SERVICE (these “Terms”) are agreed to between Desi Marketplace Inc (DBA Modern Desi) (“Modern Desi,” “we,” “us,” and “our”) and you, or the entity on whose behalf you are agreeing to these terms.

These Terms apply to the Modern Desi website located at www.moderndesi.com and all other sites, mobile sites, services, applications, platforms and tools where these Terms appear or are linked (collectively, the "Services"). You and other individuals or entities using the Services are collectively referred to as “Users.”  If you are a Merchant, our policy for Merchants (“Merchant Policy”) also applies to your access to, and use of the Services.  Click here to view our Merchant Policy.

PLEASE READ THESE TERMS CAREFULLY.  BY ACCESSING OR OTHERWISE USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS.  Any person or entity who interacts with the Services, whether through automated means, third-party means or otherwise, is considered a User. Unless you have entered into a separate agreement with Modern Desi regarding the Services, these Terms are the complete and exclusive agreement between you and Modern Desi regarding your access to and use of the Services and supersede any oral or written proposal, agreement or other communication between you and Modern Desi regarding your access to and use of the Services. 

IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS, MODERN DESI IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SERVICES, AND YOU MUST NOT ACCESS OR USE THE SERVICES.

1. Definitions.  Words and phrases used in these Terms have the definitions given in these Terms or, if not defined herein, have their plain English meaning as commonly interpreted in the United States. 
2. Term.  These Terms are entered into as of the earlier of the date you first access or use the Services (the “Effective Date”) and will continue until terminated as set forth herein. 
3. Modifications.  We reserve the right, at any time, to modify any of the Services, as well as these Terms, whether by making those modifications available through the Services or by providing notice to you as specified in these Terms.  Any modifications will be effective 24 hours following posting through the Services or delivery of such other notice. You may cease using the Services or terminate these Terms at any time if you do not agree to any modification. However, you will be deemed to have agreed to any and all modifications through your continued use of the Services following such notice.  Any modifications to the Services, including all updates, upgrades, new versions, and new releases, will be treated as part of the “Services” for purposes of these Terms.
4. Eligibility.  The Services are intended for use by Users of 13 years of age and older.  If you are under 18, you may use this Site only with involvement of a parent or guardian.
5. Access.  Subject to your compliance with these Terms, we will permit you to access and use the Services solely for lawful purposes and only in accordance with these Terms and any other agreement you agree to before being given access to any specific Service. Any additional agreement is in addition to these Terms and will govern your use of the specific Services to which the additional agreement applies in the event of a conflict between these Terms and such additional agreement.
6. Unlawful or Prohibited Uses of the services.  The Services may only be used for lawful purposes in accordance with these Terms.  As a condition of your use of the Services, you represent and warrant to us that you will not use the Services for any purpose that is unlawful or prohibited by these Terms. Whether on behalf of yourself or on behalf of any third party, you will not:
1. Make any commercial use of the Services other than in furtherance of any Transactions that you make through the Services;
2. Download, copy or transmit any content for the benefit of any other merchant;
3. Misrepresent your identity, impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Services, or express or imply that we endorse any statement that you make;
4. Use a buying agent to conduct Transactions through the Services;
5. Conduct fraudulent activities through the Services;
6. Send unsolicited or unauthorized email to Users of the Services on behalf of Modern Desi, including promotions and/or advertising of products or services;
7. Use the Services to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including others’ privacy rights or rights of publicity;
8. Harvest or collect personally identifiable data about Users; and
9. Use the Services to advertise or offer to sell or buy any goods or services without an agreement with Modern Desi or otherwise to engage in any unauthorized commercial activity.
7. Accounts.  Before using certain Services, you may be required to establish an account (an “Account”).  Approval of your request to establish an Account will be at our sole discretion.  Each Account and the User identification and password for each Account (the “Account ID”) is personal in nature.  You may not distribute or transfer your Account or Account ID or provide a third party with the right to access your Account or Account ID.  You are solely responsible for all use of the Services through your Account.  You will ensure the security and confidentiality of your Account ID and will notify us immediately if any Account ID is lost, stolen or otherwise compromised.  Any activities completed through your Account or under your Account ID will be deemed to have been done by you.  You may not: (1) select or use an Account ID of another User with the intent to impersonate that User; and (2) use an Account ID that we, in our sole discretion, deem offensive.  In addition to all other rights available to us, including those set forth in these Terms, we reserve the right to terminate your Account, refuse service to you, or cancel orders.
8. Our Content.  
1. Ownership and Responsibility.  All content included with the Services that we provide such as text, graphics, logos, images, audio clips, video, data, music, software, application updates, and other materials (collectively "Our Content") is owned or licensed property of Modern Desi or its suppliers or licensors and is protected by United States and international copyright, trademark, patent or other proprietary rights (collectively, “IPR”). The collection, arrangement and assembly of all Our Content through the Services are the exclusive property of Modern Desi and protected by United States and international copyright laws. Modern Desi and its suppliers and licensors expressly reserve all IPR in all Our Content.  You are solely responsible for verifying the accuracy, completeness, and applicability of all Our Content and for your use of any of Our Content.  Except as set forth in these Terms, you are granted no licenses or rights in or to any of Our Content, or any IPR therein or related thereto.
2. Viewing Our Content.  Subject to your compliance with these Terms, you may view Our Content, solely as presented on the Services, in furtherance of any Transactions that you make through the Services and any other permitted uses of the Services. You will not directly or indirectly use any of Our Content for any purpose, except as stated in this Section.  This prohibition includes your use of Our Content for a limited or “transformative” purpose, including commenting upon, criticizing, or parodying any of Our Content unless we invite you to do so.  You will not, and will not permit any third party to: (a) alter, modify, copy, reproduce, publish, or create derivative works of any of Our Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Our Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any of Our Content.
9. Your Content.  
1. Substance and Responsibility.  We welcome your reviews, comments, and other communications, photos, videos, or any other content that you submit through or to the Services, or any content or information you publish through any social media and allow us to feature, such as your name, social media handle, accompanying text, and any images from your social media accounts (e.g., Twitter™, Instagram™, Pinterest™) (collectively, "Your Content"), as long as Your Content complies with these Terms.  You are solely responsible for all Your Content that You provide through the Services.  You represent and warrant to us that neither Your Content nor the use of Your Content by us as permitted herein will: (a) violate these Terms or any applicable laws, rules, or regulations; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute an infringement or misappropriation of the IPR or other rights of any third party; (d) be illegal in any way or advocate illegal activity; (e) be an advertisement or solicitation of any kind; (f) be false, misleading, or inaccurate; or (g) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. We are not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Your Content.  We are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any of Your Content.  You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, in our sole discretion: (i) monitor Your Content; (ii) alter, remove, or refuse to post or allow to be posted any of Your Content; and/or (iii) disclose any of Your Content, and the circumstances surrounding its transmission, to any third party.  
2. License to Your Content.  As between you and us, you retain ownership of Your Content. However, in addition to any other rights granted to us under these Terms, by providing Your Content through the Services, you grant us and our authorized representatives and contractors a non-exclusive, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell and distribute Your Content and to incorporate Your Content into any form, medium, or technology, now known or hereafter developed, throughout the world, in each case in order to provide the Services and fulfill any other of our obligations under these Terms.  In addition, you grant to us the right to include your name that you provide along with Your Content.  You further irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding Your Content that you may have under any applicable law or under any legal theory.  You represent and warrant that you have all rights necessary for you to grant the licenses granted in this Section, including but not limited to permission from or on behalf of any individuals that appear in Your Content to for us to use their name, image, voice and/or likeness without compensation to you or any other person or entity.
10. Third-Party Content and Services.  
1. Third-Party Content.  Content is also provided by other Users. Other Users may post content that is inaccurate, misleading, or deceptive. We neither endorse nor are responsible for any opinion, advice, information, or statements made by third parties. The opinions expressed by third parties reflect solely the opinions of the individuals who submitted such opinions and may not reflect our opinions.
2. Third-Party Services.  We may provide you with the ability to access services developed, provided, or maintained by third-party service providers through the Services (“Third-Party Services”). Third-Party Services may integrate with, pull content from, or add content to the Services. In addition to these Terms, your access to and use of any Third-Party Services is also subject to any other agreement you may agree to before being given access to the Third-Party Services (each, a “Third-Party Service Agreement”). The terms of any Third-Party Service Agreement will apply to the applicable Third-Party Services provided under that Third-Party Service Agreement in addition to these Terms but will not apply to any other Services you may access.
11. Transactions.
1. Transaction Information.  If you wish to purchase any Items available through the Services (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction including, without limitation, information about your method of payment (such as your payment card number and expiration date), your billing address, and your shipping information (collectively, “Transaction Information”). You represent and warrant that you have the legal right to use any Transaction Information utilized in connection with any Transaction.  By submitting Transaction information to us, you grant to us the right to provide such information to third parties, including Merchants, for purposes of facilitating the completion of Transactions initiated by you or on your behalf.  Verification of Transaction Information may be required prior to the acknowledgment or completion of any Transaction.
2. Items.  All descriptions, images, references, features, content, specifications, products and prices of Items are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only.  The inclusion of any Items on the Services does not imply or warrant that these Items will be available.  It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any Item. By entering into a Transaction, you represent and warrant that the Item that you buy will be used only in a lawful manner.  We reserve the right, with or without prior notice, to do any one or more of the following: (a) limit the available quantity of or discontinue any Item; (b) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (c) bar you from making or completing any or all Transaction(s); and (d) refuse to provide you with any Item.  You agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
3. Availability, Errors and Inaccuracies.  Our acknowledgement of an order means that your request has been received; it does not mean that your order has been accepted, consummated as a Transaction or shipped or that the price or availability of an Item has been confirmed.  We make a conscientious effort to describe and display Items accurately on the Site. Despite these efforts, a small number of Items may be mispriced, described inaccurately or unavailable, and we may experience delays in updating Item information.  As a result, we cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, and availability, including for Merchant Items.  We, or Merchants, as applicable, reserve the right to change or update Item information and to correct errors, inaccuracies or omissions at any time without prior notice.  If we determine that there were inaccuracies in Modern Desi Item information, we will cancel your Transaction and notify you of such cancellation via email. Merchants may have different shipping procedures and processes in place for Merchant Item availability and price adjustments.
4. Rules for Promotions.  Any sweepstakes, contests, raffles, discounts, or other promotions (collectively, "Promotions") made available through the Site may be governed by rules that are separate from these Terms.  If you participate in any Promotions, please review the applicable rules as well as the Privacy Policy.  If the rules for a Promotion conflict with these Terms, the Promotion rules will apply.
5. Gift Cards and Certificates.  All e-gift cards and certificates are deemed purchased in and issued from the State of Colorado.  The risk of loss and title to such items passes to the purchaser upon our electronic transmission to the recipient.
12. Customer Service.  If you give us permission to contact you regarding a customer service issues, we or our agents may call, text, or email you at the telephone number and/or email address that you provide us.  You further agree that we may, for training purposes or to evaluate the quality of our service, listen to and record phone conversations you have with us or our agents regarding customer service issues.
13. Links to Third-Party Websites.  The Services may contain links and interactive functionality interacting with the websites of third parties, including social sites and Merchants’ sites.  We are not responsible for, and have no liability for, the functionality, actions, inactions, settings, privacy policies, terms, or content of any such third-party website. Before enabling any sharing functions of the Services to communicate with any such third-party website or otherwise visiting any such third-party website, we strongly recommend that you review and understand the terms and conditions, privacy policies, and settings of each such third-party website.  The links and interactive functionality for third-party websites through the Service do not constitute an endorsement by us of such third-party websites.  Other websites may link to the Services with or without our authorization, and we may block any links to or from the Services in our sole discretion. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK.
14. Risk of Loss.  Except as otherwise set forth in a Merchant’s shipping or returns policy, the risk of loss for and title to Item purchased through the Service passes to the purchaser upon delivery to the carrier.
15. Termination.  These Terms may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under these Terms. Upon termination of these Terms for any reason: (1) all rights granted to you under these Terms will terminate; (2) you will immediately cease all use of and access to all Services, including Your Content; and (3) we may, in our sole discretion, delete your Account at any time.  Your Content may continue to exist on the Services and be visible to Users after termination of these Terms unless you actively delete it or contact us and request deletion. Provisions which by their inherent meanings are to survive the termination of these Terms will so survive. 
16. Suspension. Without limiting our right to terminate these Terms, we may also suspend your access to your Account and the Services, with or without notice to you, upon any actual, threatened, or suspected breach of these Terms or applicable law or upon any other conduct deemed by us to be inappropriate or detrimental to Modern Desi, the Services, or any other User or third party.
17. Technology and Marks. The Services, and the databases, software, hardware and other technology used by or on our behalf to operate the Services, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), may constitute valuable trade secrets of Modern Desi.  You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in these Terms; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology. We use reasonable means to protect the security of the Services, but you acknowledge that perfect security on the internet is impossible and that, as a result, Your Content may be exposed in the event of a breach.  We retain all rights, title and interest, including, without limitation, all IPR in and to the Technology and any additions, improvements, updates and modifications thereto.  You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access and use the Services under these Terms.  The Modern Desi name, logo and all product and service names associated with the Services are trademarks of Modern Desi and its licensors and providers, and you are granted no right or license to use them.
18. Representations and Warranties. You hereby represent and warrant to us that: (a) you have the legal right and authority to enter into these Terms; (b) these Terms form a binding legal obligation on your behalf; (c) you have the legal right and authority to perform your obligations under these Terms and to grant the rights and licenses described in these Terms; and (d) your use of and access to the Services and Your Content, will comply with all applicable laws, rules, regulations, and third-party rights and will not cause us to violate any applicable laws, rules, regulations or third-party rights.
19. Disclaimers.  WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS, OR OTHERWISE MEET YOUR REQUIREMENTS.  THE SERVICES AND ALL CONTENT, ITEMS, TECHNOLOGY, THIRD-PARTY SERVICES AND OTHER INFORMATION INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES (COLLECTIVELY, THE “MATERIALS”) ARE PROVIDED BY US ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND.  WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE MATERIALS, THE ACCURACY OR COMPLETENESS OF THE MATERIALS, OR THAT COMMUNICATIONS SENT FROM US ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE MATERIALS IS AT YOUR SOLE RISK.  TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.  CERTAIN MERCHANTS MAY SEPARATELY PROVIDE LIMITED REPRESENTATIONS AND/OR WARRANTIES REGARDING MERCHANT ITEMS. THIS DISCLAIMER DOES NOT APPLY TO SUCH MERCHANT ITEM WARRANTIES.
20. Indemnity.  You hereby agree to indemnify, defend, and hold harmless us and our officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, Users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) arising in any manner from: (1) your access to or use of the Materials, including any Services, Third-Party Services, Technology or Our Content; (2) Your Content, including any use of Your Content Users; and (3) your breach of any representation, warranty, or other provision of these Terms. We will provide you with notice of any such claim or allegation, and we will have the right to participate in the defense of any such claim at our expense.
21. Limitation on Liability.  WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE MATERIALS, INCLUDING THE SERVICES, THIRD-PARTY SERVICES, TECHNOLOGY, AND OUR CONTENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS AND ALL MATERIALS, INCLUDING THE SERVICES, OUR CONTENT, AND THE TECHNOLOGY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100 OR THE AMOUNT YOU PAID FOR THE ITEMS IN THE TRANSACTION GIVING RISE TO THE CLAIM, WHICHEVER IS HIGHER. YOU AGREE THAT WE WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY.  IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
22. Data Privacy. You acknowledge that you have read and understood the privacy policy located at www.moderndesi.com/policies/privacy-policy (the “Privacy Policy”). Notwithstanding anything in the Privacy Policy, we will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information resulting from your access to and use of the Services. To the extent any such non-personally identifiable data or information is collected or generated by us, the data and information will be solely owned by us and may be used by us for any lawful business purpose without a duty of accounting to you, provided that the data and information is used only in an aggregated form, without directly identifying you or any other entity or natural person as the source thereof. 
23. Claims of Infringement. We respect your copyrights and other intellectual property rights and those of other third parties. If you believe in good faith that your copyrighted work has been reproduced through the Services without your authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to: ADDRESS Please provide the following information to our Copyright Infringement Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) your name, address, daytime phone number, and email address, if available; (3) a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and (5) your electronic or physical signature.
24. Disputes. 
1. Agreement to Arbitrate. Except as otherwise provided in these Terms, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms, including the formation, validity, binding effect, interpretation, performance, breach or termination, of these Terms and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to these Terms (each, a “Dispute”) through discussion between the parties.  Except as otherwise provided in these Terms, if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the rules of the American Arbitration Association then in effect (the “Rules”).  Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules.  The arbitration will be conducted in the English language at a site specified by us in Denver, Colorado, United States.  The arbitrator will apply the governing law set forth in in these Terms to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend these Terms or grant any relief not permitted herein or beyond the relief permitted herein.  The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees and expenses (including attorneys’ fees).  Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof.  Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
2. Exception to Arbitration. You agree that if we reasonably believe that you have, in any manner, violated or threatened to infringe our IPR, then we may seek emergency, preliminary or other appropriate interim relief in the federal or state courts located in Denver, Colorado, United States.
3. Governing Law and Venue. The interpretation of the rights and obligations of the parties under these Terms, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, United States as such laws apply to contracts between Colorado residents performed entirely within Colorado, without regard to the conflict of laws provisions thereof.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, and the parties hereby disclaim the application thereof.  Subject to the arbitration provision of these Terms, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court in Denver, Colorado, United States, and you irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding brought in such courts by us.
4. Notices. Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided to us by postal mail to the address for Modern Desi listed on the Services.  We may provide you with any notices required or allowed under these Terms by sending you an email to any email address that you provide to us in connection with your Account, provided that in the case of any notice applicable both to you and other Users, we may instead provide such notice by posting it on the Services.  Notices provided to us will be deemed given when we actually receive them.  Notice provided to you will be deemed given 24 hours after posting to the Services or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
5. Additional Terms. Except as expressly set forth in these Terms, these Terms may be amended or modified only by a writing signed by both parties.  All waivers by us under these Terms must be in writing or later acknowledged by us in writing.  Any waiver or failure by us to enforce any provision of these Terms on one occasion will not be deemed a waiver by us of any other provision or of such provision on any other occasion.  If any provision of these Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force.  The prevailing party in any lawsuit or proceeding arising from or related to these Terms will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.  Neither these Terms nor any of your rights or obligations hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without our prior written approval.  Any assignment in violation of the foregoing will be null and void. We may freely assign these Terms. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”  The parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.