Last modified November 20, 2015
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
You must agree to this ToU to use the Site and/or the Service. If you use the Site and/or the Service, you accept this ToU and agree to all of its terms and conditions. By accepting this ToU or using the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use the Site or the Service. If you are using the Site or the Service on behalf of another person or entity, you represent and warrant that you have full legal authority to bind that person or entity to this ToU. If you do not have such authority, then you may not use the Site or the Service=.
1. ToU Updates
The Company may update this ToU at any time and will post the updated version of this ToU on the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use the Site or the Service after the updated ToU is posted..
2. Provision of the Service
You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Service. You acknowledge and agree that the Company may make changes to the Site and/or the Service at any time without notifying you in advance.
3. Termination of Service
The Company reserves the right to deny access to the Site and/or Service to any person or entity at the Company’s sole and absolute discretion. You acknowledge and agree that the Company may stop providing the Site and/or the Service or restrict your use of the Site and/or the Service any time, without notifying you in advance, for any reason or no reason including without limitation, any violation of this ToU and/or if the Company suspects that you are using the Site and/or Service to conduct any fraudulent, illegal or unethical activity.
4. Restrictions and Conditions of Use
4.1. Use of the Site. The Company permits you to view and use the Site solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any content, images, designs, information, materials, data, services or other audio or visual material (the “Content”) obtained from the Site or through the Service.
4.2. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site or mobile application provided by the Company. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the Site or the Service.
4.3. No Violation of Laws. You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty.
4.4. Use Restrictions. You may not connect to or use the Site or the Service in any way that is not expressly permitted by this ToU.
a. You may not: (a) remove any proprietary notices from the Site or the Service; (b) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (c) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service or Content, including, without limitation, through sublicense, to any other person or entity without the prior written consent of the Company; or (d) use the Site or the Service for the posting of commercial marketing or ‘spam’; or (e) make any false, misleading or deceptive statement or representation regarding the Company and/or the Site or the Service.
b. Without limiting the above, you agree that you will not: (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or the Service (or any servers, systems or networks connected to the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Site and/or the Service or any other person’s or entity’s use of the Site and/or the Service (or any servers, systems or networks connected to the Site or the Service); (ii) attempt to gain unauthorized access to the Site, Service, or any servers, systems or networks connected to the Site and/or the Service, (iii) use the Site or the Service for any commercial purpose or the benefit of any third party, or charge any person, or receive any compensation for, the use of the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with the Company; or (iv) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children or vulnerable people in any manner; (C) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
4.5. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any personal, private or confidential information from the Service to use for your own purposes, including without limitation email addresses of other users or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the Service.
4.6. Violation of this ToU. You acknowledge and agree that you are solely responsible, and the Company has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach.
5.1. Links from the Site. The Site may contain links to websites operated by other parties. The Company provides these links to other websites as a convenience, and use of these websites is at your own risk. The linked websites are not under the control of the Company, and the Company is not responsible for the content available on the other websites. Such links do not imply the Company’s endorsement of information or material on any other website and the Company disclaims all liability with regard to your access to and use of such linked websites.
5.2. Links to the Site. Unless otherwise set forth in a written agreement between you and the Company, you must adhere to the Company’s policy if you wish to link to the Site as follows: (i) the appearance, position and other aspects of the link must not damage or dilute the goodwill associated with the Company’s names and trademarks, (ii) the appearance, position and other attributes of the link must not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with the Company or that Content on the site is created or owned by you, and (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site. The Company reserves the right to revoke its consent to any link you place at any time and in its sole discretion.
6. Intellectual Property
6.1. Trademarks. The Company name(s) and logo are trademark/service marks of the Company. Unless permitted in a separate written agreement with the Company, you do not have the right to use or incorporate any of the Company’s trademarks, service marks or logos into your own website, marketing or other materials and your unauthorized use of any of these may be a violation of federal and state trademark laws.
6.2. Ownership. You acknowledge and agree that the Company (and its licensors) owns all right, title and interest in and to the Site, the Service and the Content, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site and the Service are protected by U.S. and international copyright laws.
6.3. Copyright Agent. The Company respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. If you believe that your work has been reproduced on our Site in a way that constitutes infringement of your copyright (or that of your client), please forward the following information to the Copyright Agent, designated pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below: Your address, telephone number, and email address; A description of the copyrighted work that you claim has been infringed; A description of where the alleged infringing material is located; A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law; An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Copyright Agent: Legal Department, ARossGirl, 833 Madison Avenue, 3D, New York, NY 10021. Email: firstname.lastname@example.org
The Site and the Service are operated by the Company in the United States. If you choose to access the Site and/or the Service from a location outside of the United States, you do so on your own initiative and are responsible for compliance with applicable local laws.
The Site and the Service are not directed toward children under 13 years of age nor does the Company knowingly collect information from children under 13. If you are under 13, please do not submit any personal information about yourself to the Company.
10. Disclaimer of Warranties
10.1. You understand and agree that your use of the Site and the Service is at your sole risk and that the Site and the Service are provided on an “as is” and “as available” basis without warranties or conditions of any kind, either express or implied.
10.2. To the maximum extent permitted by applicable law, the Company expressly disclaims all warranties and conditions including, without limitation, warranties and conditions of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, and those arising from course of dealing or usage of trade.
10.3. The Company makes no representation or warranty as to the accuracy, completeness or reliability of any materials, information or data available through, or the performance of, the site or the service.
10.4. The Company does not represent or warrant that (a) you will be able to access or use the Site and/or the Service at the times or locations of your choosing; (b) that operation of the Site or the Service will be uninterrupted, timely, secure or error-free; (c) your use of the Site or the Service will meet your requirements; (d) defects in the operation of the Site or the Service will be corrected; or (e) the Site or the Service is free of viruses or other harmful components.
10.5. You acknowledge and agree that any material downloaded or otherwise obtained through the use of the Site or the Service is at your own risk and that you will be solely responsible for any damage to your computer, mobile phone or other device or any loss of data resulting from downloading or obtaining such material.
The limited warranty set forth above is provided in lieu of all other representations, warranties, terms and conditions, and to the maximum extent legally permitted the Company hereby disclaims all other representations, warranties, terms and conditions of any kind, whether express, implied, statutory or otherwise, including without limitation any warranties, terms or conditions of merchantability, fitness for a particular use or purpose, non-infringement, quality and title. The Company does not represent or warrant that the Site and the Service is error free or that it will function without interruption.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, some of the above disclaimers may not apply to you if applicable law does not permit them in your state or jurisdiction.
11. Limitation of Liability; Sole and Exclusive Remedy
11.1. To the maximum extent permitted by applicable law, the Company, its affiliates, licensors and business partners (collectively, the “Related Parties”) shall not be liable to you, under any contract, tort (including negligence), strict liability or other legal or equitable theory, for:
A. Any direct, indirect, incidental, consequential, special or exemplary damages, including loss of profits, use, data or goodwill, arising out of or in any way connected with access to or use of the Site and/or the Service, even if the Company and/or the Related Parties have been advised or should have been aware of the possibility of any such losses or damages;
B. The cost of procurement of substitute goods, services or rights; or
C. The deletion of, corruption of, or failure to store any materials, information or data maintained by or through your use of the Site or the Service.
11.2. Without limiting the foregoing, in no case shall the liability of the Company or any of the Related Parties exceed one hundred dollars ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for direct, consequential or incidental damages, in such states or jurisdictions, the liability of the Company and its Related Parties shall be limited to the fullest extent permitted by law. Nothing in this ToU excludes or limits any liability that mandatory applicable law in your jurisdiction does not permit the exclusion or limitation of.
You agree to indemnify, defend and hold the Company and the Related Parties harmless from any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, settlements, penalties, fines costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs and other dispute resolution expenses) resulting from or arising out of (i) your use of the Site and/or the Service; or (ii) your breach of this ToU or any other policies that the Company may issue for the Site and/or the Service from time to time. The foregoing obligations shall not apply to the extent that mandatory applicable law in your jurisdiction does not permit us to enforce such terms.
13. Governing Law; Jurisdiction
This ToU is governed by New York law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and the Company agree that, except as provided in Section 14, the state and federal courts located in the County of New York, New York will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service, and you agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the above, the Company shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
14.1. ToU Revisions. This ToU may only be revised in writing signed by the Company, or published by the Company on the Site.
14.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of this ToU or your use of the Site or the Service.
14.3. Assignment. The Company may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without the Company’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
14.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
14.5. Attorneys’ Fees. To the fullest extent legally permitted, in the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
14.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by the Company of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
14.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: ARossGirl, 833 Madison Avenue, 3D, New York, NY 10021, ATTN: Legal Department.
14.8. Equitable Remedies. You acknowledge and agree that the Company would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
14.9. Entire Agreement. Except as stated above, this ToU, including any documents referenced in this ToU, constitutes the entire agreement between you and the Company with respect to the Site and the Service and supersedes any and all prior agreements between you and the Company relating to the Site and/or the Service.