Last Updated: March 23, 2015.
In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Website or to a Website or product offered via the Website (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
Each time you access and/or use the Website (other than to simply read these Terms), you agree to be bound by and comply with the Terms and any Additional Terms then posted. Therefore, do not use the Website if you do not agree. The business realities associated with operating the Website are such that, without the conditions that are set forth in these Terms – such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes – we would not make the Website available to you.
TABLE OF CONTENTS
15. USER DISPUTES
1. UPDATE TO TERMS
2. WEBSITE CONTENT, OWNERSHIP, LIMITED LICENSE AND RIGHTS OF OTHERS
A. Content. The Website contains a variety of: (i) materials and other items relating to Company and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Website, and the compilation, assembly, and arrangement of the materials of the Website and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, Website marks, and trade identities of various parties, including those of Company (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). In no event will anything contained in these Terms or any area of the Website be construed as a representation or guarantee with respect to any of the Content. We do not guarantee the accuracy, completeness or usefulness of any Content. Furthermore, we do not endorse, nor are we responsible for, the accuracy and reliability of any opinion, advice or statement made on the Website by any third party.
B. Ownership. The Website (including past, present, and future versions) and the Content are owned or controlled by Company and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Website is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Company owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Website.
C. Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Company grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Company’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others. In using the Website, you must respect the intellectual property and other rights of Company and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Company respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Website, then please see Section 8 below.
3. PERMITTED USES OF THE WEBSITE
This Website is not intended for, and we have no intention of collecting personally identifiable information from, persons under the age of 13. The Content posted on this Website is provided as information to interested persons and may be used for informational and personal purposes only. This Website is not intended for commercial use. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by us without notice and may result in termination of privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the Website. Some examples of unauthorized or illegal use of this Website include, but are not limited to:
You also agree that, in using the Website: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Website by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Company or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any User experience. Any unauthorized use or violation of these Terms immediately and automatically terminates your right to use this Website and may subject you to legal liability. You agree not to use the Website for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the Website.
If you register for any feature that requires a password and/or Username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a Username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, Username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and Username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Website using your name, Username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or Username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
5. TERMS APPLICABLE TO PURCHASES ON THE WEBSITE
A. Generally. To purchase any products or services in the Honor online store, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. Prior to the purchase of any products or services, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card or otherwise use a valid gift card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization or on a date that is otherwise disclosed on the Website when we sell you the item. For any product or service that you order on the Website, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. Company will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
B. Methods of Payment, Credit Card Terms and Taxes. All payments must be made by [Visa, MasterCard, Discover or American Express]. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT COMPANY, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Company of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Company does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Company or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Company shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
C. Return and Shipping Policy. All purchase transactions made through the Website are subject to Company’s return and shipping policy in effect at the time of purchase. Currently, Company’s return and shipping policy can be found here.
D. Pre-Sale Products. If you pre-order products that we advertise for sale on the Website, you will be required to pay for the product in full at the time you place your order, exclusive of shipping fees and taxes. Please be aware that because of the “pre-sale” nature of such transactions, you should expect a wait period of approximately four (4) to six (6) months (or other time period listed on the Website) between the date you place your order and the date that the product is ready for shipment. The estimated delivery window will be noted on the product page of the Website. You acknowledge that by purchasing a pre-sale/pre-order product on the Website, you are waiving any right you may have under the Federal Trade Commission’s Mail Order Merchandise Rule (or other similar rule in the jurisdiction where you are purchasing products) to receive such merchandise within thirty (30) days of purchase and consent to receiving the product(s) in accordance with the estimated sale and delivery date disclosed by Company on the Website. Thus, you are expressly waiving any right you may have to receive a refund for failing to receive the product within thirty (30) days of the date in which you pay your deposit.
E. Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Company reserves the right at any time after receipt of your order to accept or decline your order for any reason. Company further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Company upon our delivery of products or services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with Company has been effected until you receive a confirmation from Company via email or the Website. As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your account was received.
F. No Responsibility to Sell Mispriced Products or Services. We do our best to describe every item, product or service offered on this Website as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Website is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, Company shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional terms may apply. If a product you purchased from Company is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
G. Modifications to Prices or Billing Terms. The purchase of products and services on the Website is subject to availability. PRODUCTS AND SERVICES DISPLAYED ON THE WEBSITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. COMPANY RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE WEBSITE OR BY E-MAIL DELIVERY TO YOU.
6. USER-GENERATED CONTENT AND USAGE RULES
A. User-Generated Content.
(i) General. Company may now or in the future offer Users of the Website the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Website messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User–Generated Content”). Company may allow you to do this through forums, blogs, message boards, social networking environments, content creation tools, gameplay, social communities, contact us tools, e-mail, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
In your communications with Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or evensuggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, services, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User-Generated Content and licensed to us as set forth below. In addition, Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Company’s receipt of your Unsolicited Ideas and Materials is not an admission by Company of their novelty, priority, or originality, and it does not impair Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
(iii) License to Company of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User-Generated Content, you hereby grant to Company, and you agree to grant to Company, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Company to your User-Generated Content, you also hereby grant to Company, and agree to grant to Company, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 6(A)(iii).
(iv) Exclusive Right to Manage Our Website. Company may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Company may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined below). Such User-Generated Content submitted by you or others need not be maintained on the Website by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Website or elsewhere.
(v) Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Company the rights to it that you are granting by these Terms and any Additional Terms, all without any Company obligation to obtain consent of any third party and without creating any obligation or liability of Company (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Company permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
(vi) Enforcement. Company has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Company’s cost and expense, to which you hereby consent and irrevocably appoint Company as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a User of the Website, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Website’s online communities.
(i) Nature of Rules. Your participation in the Website communities is subject to all of the Terms, including these Rules. The following is a partial list of the type of User-Generated Content that is illegal or prohibited to post on or through the Website. Prohibited User-Generated Content includes, but is not limited to, materials that:
If you submit User-Generated Content that Companyreasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Website.
7. TERMINATION OF ACCESS
In addition to any right or remedy that may be available to us under these Terms, Additional Terms or applicable law, we may suspend, limit or terminate your access to the Website, at any time with or without notice and with or without cause. In addition, we may refer any information on illegal activities, including your identity, to the proper authorities.
8. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
We are committed to complying with copyright and related laws, and we require all Users of the Website to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Website in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate privileges of any User who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.
If you feel that a posted message is objectionable or infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.
If you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, please provide our designated agent with the following information:
◦ an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
◦ a description of the copyrighted work or other intellectual property that you claim has been infringed;
◦ a description of where the material that you claim is infringing is located on the Website;
◦ your address, telephone number, and email address;
◦ a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
◦ a statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or
authorized to act on the copyright or intellectual property owner’s behalf.
Our designated agent for notice of claims of copyright infringement can be reached as follows:
By Mail: Randall Apparel LLC
270 Lafayette St suite 1102,
New York, NY 10012
Attn: HONOR NYC
By Email: email@example.com
Subject line: DMCA
9. NOTICES, QUESTIONS AND CUSTOMER SERVICE
You agree that: (1) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the Website, or in another reasonable manner; and (2) we may contact you by mail or e-mail sent to the address provided by you. You agree to promptly notify us if you change your e-mail or mailing address by updating your account or emailing us at: firstname.lastname@example.org. All legal notices to us must be sent to the address in Section 8 above.
If you have a question regarding using the Website, you may contact Company Customer Support by contacting us here. You acknowledge that the provision of customer support is at Company’s sole discretion and that we have no obligation to provide you with customer support of any kind.
10. LINKS TO THIRD PARTY SITES; ADVERTISERS AND LINKS BY YOU TO THE WEBSITE
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with Company or cause any other confusion, and (c) the links and the content on your website do not portray Company or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Company. Company reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
12. DISCLAIMER OF REPRESENTATION AND WARRANTIES
YOUR ACCESS TO AND USE OF THE WEBSITE IS AT YOUR SOLE RISK.
THE WEBSITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Randall Apparel, LLCand its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Company Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Website (including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Website;
(c) any products, services, or instructions offered or referenced at or linked through the Website;
(d) security associated with the transmission of your User-Generated Content transmitted to Company or via the Website;
(e) whether the Website or the servers that make the Website available are free from any harmful components (including viruses, Trojan horses, and other
technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Website is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to or errors on the Website will be repaired or corrected;
(h) whether your access to the Website will be uninterrupted;
(i) whether the Website will be available at any particular time or location; and
(j) whether your use of the Website is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A COMPANY PARTY, COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
You agree to, and you hereby, defend, indemnify, and hold Company Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Website and your activities in connection with the Website; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Website or your activities in connection with the Website; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) CompanyParties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Company Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party.
These Terms shall remain in full force and effect while you use the Website or are registeredwith the Website. You may terminate your registration at any time, for any reason. We may terminate your registration at any time, without warning. Even after your registration is terminated you continue to remain bound by these Terms to the extent you continue to access the Website in any capacity.
15. USER DISPUTES
You are solely responsible for your interactions with other Users of the Website, whether online or offline. We are not responsible or liable for the conduct or content of any User. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other Users Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities. If you discover any content that violates these Terms, then you may report it to us at email@example.com. For alleged infringements of copyright rights, see Section 8.
16. LIMITATION ON LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Website (including the Content and the User-Generated Content);
(b) your use of or inability to use the Website, or the performance of the Website;
(c) any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Website;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Website’s technical operation; or
(f) any damage to any User’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from
any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other
technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or
equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Website).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID COMPANY IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY COMPANY OR A MANUFACTURER OF A PHYSICAL PRODUCT.
17. DISPUTE RESOLUTION
Certain portions of this Section 17 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Company agree that we intend that this Section 17 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 17 can only be amended by mutual agreement.
A. First – Try To Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Website, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Company’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 17.D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 17.A. Your notice to us must be sent to: Randall Apparel LLC, 48 West 25th Street, 12th Floor, New York, NY 10010 USA, Attn: Legal Department. For a period of sixty (60) days from the date of receipt of notice from the other party, Company and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Company to resolve the Dispute or Excluded Dispute on terms with respect to which you and Company, in each of our sole discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 17(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND COMPANY MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE WEBSITE (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY – AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS. The Federal Arbitration Act (“FAA”) shall govern the arbitrability of all disputes between Company and you regarding these Terms (and any Additional Terms) and the Website, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. COMPANY and you agree, however, that the State of New York or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Company regarding these Terms and the Website, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to the State of New York’s choice of law principles.
A Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Companyconsent to in writing. If an in-person arbitration hearing is required, then it will be conducted in New York, New York. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this Section 17 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. Issues relating to the enforceability of the arbitration and class action waiver provisions contained herein are for the court to decide. This arbitration provision shall survive termination of these Terms or the Website.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 17(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED. Commencing means, as applicable (a) by delivery of written notice as set forth above in Section 17(A); (b) filing for arbitration with the AAA as set forth in Section 17(B); or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
D. Injunctive Relief. The foregoing provisions of this Section 17 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Website, any Content, your User-Generated Content and/or Company’s intellectual property rights (including such Company may claim that may be in dispute), Company’s operations, and/or Company’s products or services.
E. No Class Action Matters. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 17(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 17(F). Notwithstanding any other provision of this Section 17, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
F. Federal and State Courts in New York, New York. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in New York County, New York. Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.
G. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
18. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, WEBSITE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OFCOMPANY.
19. OPERATION OF WEBSITE; AVAILABILITY OF PRODUCTS AND SERVICES; INTERNATIONAL ISSUES AND U.S. EXPORT CONTROLS
Company controls and operates the Website from its U.S.-based offices in the U.S.A., and Company makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Website may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Website and/or the provision of any content, program, product, Website, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, Website, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
Software made available to you by the Website (the “Software”) is subject to United States export controls. No Software may be downloaded from the Website or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms, and your account on the Website, are personal to you and may not be transferred or assigned. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, U.S.A., regardless of your location, without regard to its conflicts of law provisions.
Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions. Our performance under these Terms is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Website or information provided to or gathered by us with respect to such use. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. These Terms, together with any additional terms and conditions or policies referred to and incorporated herein (including additional terms applicable to various parts of the Website), constitutes the entire understanding between you and us.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.