Last Updated: December 06, 2021
Please read this agreement carefully. It sets forth the legally binding terms and conditions for your use of the site and available services. These terms require you arbitrate any disputes you have with us and you waive the ability to bring claims against us in court, to have any dispute heard by a judge or jury, or to bring claims against us in a class action format.
If you want to use this Service, then carefully read these entire Terms (including all links to details such as our arbitration agreement), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Service if you do not agree.
Linkable Table of Contents
- Opening and Terminating Accounts
- Terms Applicable to Purchases
- Service Content, Ownership, Limited License and Rights of Others
- Service and Content Use Restrictions
- Content You Submit and Community Usage Rules
- Procedure for Alleging Copyright Infringement
- Notices, Questions and Customer Service
- Links by You to the Service
- Linked-To Websites; Advertisements; Dealings with Third Parties
- Wireless and SMS Programs
- Dispute Resolution and Binding Arbitration
- Disclaimer of Representations and Warranties
- Limitations of our Liability
- Waiver of Injunctive or Other Equitable Relief
- Updates to Terms
- General Provisions
- Terms Applicable For Apple Device Users
Full Terms and Conditions
1. Opening and Terminating Accounts
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 email 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 Service 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.
If you would like to close your Service account, please contact us at email@example.com and include "Account Closure Request" in the subject line with your full name and email address associated with your account.
2. Terms Applicable to Purchases
Generally. To purchase any products or services we make available in our online stores, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence or if you are a minor, have a valid credit card where an adult has listed you as an authorized user of their card. 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. For any product or service that you order on the Service, 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. Also, please review our FAQ, if you have questions about the terms applicable to purchases.
Methods of Payment, Credit Card Terms and Taxes. All payments must be made by Visa, MasterCard, Discover, American Express, Diner’s Club International, JCB, Chico’s Gift Card or alternative payment forms approved by Company and available on Company’s website (including, but not limited to, PayPal, AfterPay, Amazon Pay, ApplePay, and other “buy now, pay later” payment forms). We currently do not accept cash, personal or business checks or any other payment form on the Service, 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.
Return Policy and Shipping Policy. All purchase transactions made through the Service are subject to Company’s return policy and shipping policy in effect at the time of purchase. Company’s current Return and Exchange Policy can be found here and is incorporated into these Terms by reference. Company’s current Shipping Policy can be found here and is incorporated into these Terms by reference.
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 Service. 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.
No Responsibility to Sell Mispriced Products or Services. We do our best to describe every item, product or service offered on this Service as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Service 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 and if in accordance with our return policy, to receive a refund for such product.
Modifications to Prices or Billing Terms. The purchase of products and services on the Service is subject to availability. Products and services displayed on the Service 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 Service or by e-mail delivery to you.
3. Service Content, Ownership, Limited License and Rights of Others
Content. The Service contains a variety of: (i) materials and other items relating to Company, Company’s apparel, products and services, and similar items from our licensors and other third parties, including all layout, information, articles, reviews, 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 Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Company and its brands (collectively, "Trademarks"); and (iii) other forms of intellectual property (all of the foregoing, collectively "Content").
Ownership. The Service (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 Service 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, 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 Service.
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.
Rights of Others.When using the Service, 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.
4. Service and Content Use Restrictions
Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other "hidden text" utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are 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; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Company, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Site, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms.
Content Use Restrictions. You also agree that, in using the Service: (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 Service 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.
Availability of Service and Content. Company may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in Company’s sole discretion, and without advance notice or liability.
Reservation of All Rights Not Granted as to Content and Service. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Company and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
5. Content You Submit and Community Usage Rules
General. Company may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, "submit") 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, including submitted on third party social media platforms or websites, including, without limitation, Facebook, Instagram, Pinterest and/or Twitter associated with hashtags related to such brands (collectively, "User-Generated Content"). Company may allow you to do this through forums, blogs, message boards, social networking environments, contact us tools, email, and other communications functionality. Subject to the 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.
License to Company of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms (such as a sweepstakes official rules), which specifically govern the submission of your User-Generated Content, you 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. If you post a Review (defined below) of a product or service that you received from Company as a Gift (defined below), you represent and warrant that you have read and will fully comply with the Guides (defined below) when submitted or posting the Review on the Service or elsewhere. Further, and without limitation, in such instance you will: (i) clearly and conspicuously disclose your true identity and that you have received free product and/or other incentive items from Company (as applicable) proximate to any mention by you of Company; (ii) not make any false, misleading or deceptive statement about Company’s products or services; and (iii) ensure that all statements accurately reflect only your honest, current opinions and beliefs based on your personal experience. 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 5(A)(iii).
Exclusive Right to Manage Our Service. 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 in Section 5(B)). Such User-Generated Content submitted by you or others need not be maintained on the Service 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 Service or elsewhere.
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 or 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’s 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.
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).
Community Usage Rules. As a user of the Service, these Community Usage Rules ("Rules") are here to help you understand the conduct that is expected of members of the Service’s online communities ("Communities").
Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
Your User-Generated Content. All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Company. (For example, if someone has taken a picture of you and your friend, and you submit that photo to Company as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.)
Speaking of Photos: No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.
Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or Service or other commercial activity, or a politician, public servant, or law.
Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.
Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
Others Can See. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions with other members. However, please remember that the Communities are public or semi-public and User-Generated Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
Don’t Share Other Peoples’ Personal Information. Your User-Generated Content should not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Company.
Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.
Additional Guidelines for Customer Reviews:The following guidelines apply to User-Generated Content that constitutes a review of a Company product or service (“Review”), and these additional guidelines shall apply in the event that your User-Generated Content is a Review:
- a. Reviews may only be of products or services sold on the Service and you must be a bona-fide user of the Company product or service that you reference in your Review;
- b. Reviews must be appropriate to the forum. For example, Reviews aren’t the place for rants about political ideologies, Company’s employment practices, extraordinary circumstances, or other matters that don’t address the Company product or service you are reviewing;
- c. Reviews should reflect your genuine experience with Company’s products and services and be a true and accurate reflection of your honest experience(s), view(s), finding(s), belief(s) and opinion(s) based on your personal use of the Company product/service you are reviewing;
- d. Don’t post fake Reviews, don’t post the same Review multiple times, and don't post Reviews for the same product or service from multiple accounts;
- e. Reviews should reflect your first-hand experience, not what you heard from someone else, or what you saw in the news. Tell your own opinion without resorting to broad generalizations and conclusory allegations;
- f. Make sure your Review is factually correct. Feel free to express your opinions, but don’t exaggerate or misrepresent your experience;
- g. Reviews should not make any product performance or attribute claims about Company products or services;
h. If you received a Company product or service from Company for free (as a gift from us or otherwise) (a “Gift”), in order to comply with your obligations set forth in the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (see http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (the “Guides”), your Review must contain a disclosure of the fact that you received the Gift free of charge from Company (the “Disclosure”). Such Disclosure must be prominent, clear and conspicuous and communicated in a way that a reader of your Review is likely to notice and understand. It’s not too complicated – it should just be straightforward and upfront. Here are a couple of examples of how this Disclosure can be made very easily and simply:
- “I accepted a free [insert description of item(s) received] from Soma in connection with my review.”
- “Thanks Soma for the free [insert description of item(s) received] and I think...”
- i. We may restrict your ability to submit or post a Review when we detect unusual reviewing behavior, or to maintain the best possible shopping experience; and
- j. If your Review is removed or rejected because it does not comply with these Terms, you may not resubmit a Review on the same product or service, even if the resubmitted Review includes different content.
If you submit User-Generated Content that Company reasonably 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 Service.
Your Interactions with Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, 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.
Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us here. For alleged infringements of copyright, see Section 6 below.
6. Procedure For Alleging Copyright Infringement
DMCA Notice. Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
- a legend or subject line that says: "DMCA Copyright Infringement Notice";
- a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears);
- your full name, address, telephone number and email address;
- a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
- your electronic or physical signature.
Company will only respond to DMCA Notices that it receives by mail, email or facsimile at the addresses below:
Attn: Elizabeth Adams
Chico's Retail Services, Inc.
11215 Metro Parkway
Fort Myers, FL 33966
- By email: firstname.lastname@example.org
It is often difficult to determine if your copyright has been infringed. Company may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Company may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting Company’s other rights, Company may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website or other online services owned or operated by Company.
Counter-Notification. If access on the Site to a work that you submitted to Company is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
- a legend or subject line that says: "DMCA Counter-Notification";
- a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Service from which the material was removed or access to it disabled);
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- your full name, address, telephone number, e-mail address, and the username of your account;
- a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Middle District of Florida), and that you will accept Service of process from the person who provided DMCA notification to us or an agent of such person; and
- your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
7. Notices, Questions and Customer Service
You agree that: (i) 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 Service, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information.
If you have a question regarding using the Service, you may contact us here (Contact Us). 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.
8. Links by You to the Service
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, 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 Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
9. Linked-To Websites; Advertisements; Dealings with Third Parties
Linked Sites; Advertisements. The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites ("Linked Sites"), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Company. Company may have no control over the content, operations, policies, terms, or other elements of Linked Sites, and Company does not assume any obligation to review any Linked Sites. Company does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Company is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Company will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites. Company disclaims all liability in connection therewith.
Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Company disclaims all liability in connection therewith.
10. Wireless and SMS Program
Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, "Wireless Features"). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify Company of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
Telephone Communications, SMS Service Alerts and Agreement to be Contacted
Text Alerts. Company may offer an SMS program (“SMS Program”), through which it sends periodic autodialed SMS messages with Company offers, such as coupons. To sign up for the SMS Program, follow the instructions in our prompt and send a text to the applicable short code. By opting in to the SMS Program you are agreeing to receive automated marketing text messages per week from Company, or third-parties acting on its behalf, to the telephone number you provide. These messages may include promotions, discounts, coupons, events and sweepstakes information. Your consent is not a condition of purchase and you can stop at any time. Text HELP to for additional help and/or STOP to the applicable short code to cancel. Company shall not be responsible or liable for the accuracy, usefulness or availability, of information transmitted via this SMS Program. Company makes no warranty that: (A) the SMS Program is compatible with your equipment, (B) the SMS Program will meet your requirements, (C) the SMS Program will be uninterrupted, timely, secure or error-free, or (D) the results that may be obtained from the use of the SMS Program will be secure, complete, accurate or reliable. You will be solely responsible for any damage to your equipment by virtue of the use of the SMS Program. Standard text messaging and data rates may apply through your service provider.
Call Recording and Monitoring. You acknowledge that telephone calls, voicemails, messages and texts to, from or through the SMS Program, together with its agents, independent contractors (including you and other users), and affiliates, may be monitored and recorded and you consent to such monitoring and recording.
Your Provision of Telephone Numbers and Other Contact Information. You verify that any contact information provided to Company, our respective agents and affiliates, including, but not limited to, your name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or terminate your account access at any time. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by texting STOP to the applicable short or any text message you receive from us. In the event that you get a new telephone number, you will need to contact us at email@example.com or 866-768-7662.
Your Consent to Receive Automated Communications. You acknowledge that by voluntarily providing your telephone number(s) to Company and our respective agents and affiliates, you expressly agree to receive automated communications, including, artificial voices, pre-recorded voice messages and/or auto-dialed calls and text messages (such as SMS, MMS, or successor protocols or technologies) from Company, its agents, independent contractors, and affiliates related to promotions, discounts, coupons, events and sweepstakes information, your rewards account, registration, orientation, product alterations, changes and updates, service outages, any transaction with Company, and/or your relationship with us. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You understand that you may receive automated text messages to any telephone number you provide at any time. You also agree that Company may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time. You agree to receive automated text messages from us, our agents, independent contractors, customers, and affiliates even if you terminate your relationship with us, except if you opt-out (see below). You understand that you do not have to agree to receive automated promotional texts as a condition of purchasing any goods or services or accessing the Company’s Rewards Program. To opt-out, please see the Opt-Out Instructions below.
Opt-Out Instructions for Automated Texts. Your consent to receive automated texts is completely voluntary. You may opt-out at any time by sending a “STOP” request to the applicable short code or replying to any text message you receive from us, by contacting us at firstname.lastname@example.org or 866-768-7662, or by informing one of our representatives through the customer service chat and specifying that you want to opt out of text messages. You acknowledge and agree to accept a final text message confirming your opt-out. It is your sole responsibility to notify us if you no longer want to receive automated text messages. You waive any rights to bring claims for unauthorized or undesired text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days (or ten (10) business days where required by law) to process any opt-out request. Please note that if you opt out of automated text messages, we reserve the right to send you confirming text messages or make non-automated calls to you. It is possible that third parties may have your contact information and you may continue to receive communications from these third parties despite an opt out request. We are not responsible for unwanted contact from third parties. Please contact third parties directly to inform them of your communication preferences.
Fees and Charges. There is no fee to receive automated text messages from us, our agents, affiliates, and independent contractors. However, you may incur a charge for these text messages from your telephone carrier, which is your sole responsibility. Messaging and data rates may be applicable and you may be responsible for fees or charges from your carrier. You may incur other charges if you leave the Services through links. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Company, our agents, affiliates, and independent contractors are not responsible for such charges. Your obligations under this Section will survive expiration or termination of these Terms.
Unauthorized Use of Your Telephone Device. You must notify us immediately of any breach of security or unauthorized use of your telephone device. Although we, our agents, affiliates, and independent contractors will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for the losses of Company, our agents, affiliates, and independent contractors or others due to such unauthorized use.
Your Indemnification to Us. You agree to indemnify Company, our agents, affiliates, and independent contractors for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify us of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold us harmless from and against any and all such claims, losses, liability, costs and expenses (including reasonable attorneys’ fees). Company shall have the exclusive right to choose counsel, at your expense, to defend any such claims.
Release of Claims. In consideration of the services provided by Company, you hereby release Company, our agents, affiliates, and independent contractors from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms resulting from or relating to telephone calls or text messages, including, without limitation, any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
General. You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive calls and text messages. Text messaging may only be available to customers of select carriers with compatible handsets. Your obligations under this Section 10 will survive termination of these Terms.
11. Dispute Resolution and Binding Arbitration
Certain portions of this Section 11 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 11 satisfies the "writing" requirement of the Federal Arbitration Act and any other applicable law. This Section 11 can only be amended by mutual agreement. PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.
First – Try to Resolve Disputes and Excluded Disputes
If any controversy, allegation, or claim arises out of or relates to the Service, any Content, your User-Generated Content, these Terms, or any Additional Terms, any product, service or advertising (including offers and promotions), or connected to the purchase, possession or use of our gift cards or merchandise return cards or their terms (but excluding e-gift cards), or the Company’s operations, 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 11(D), and together with a Dispute, a “Claim”), then you and we agree to send a written notice to the other that includes a reasonable description of your Claim and any supporting documentation along with a proposed resolution. Your notice of any Claim and all other correspondence for any Claim must include your current mailing address. Our notice of any Claim and all other correspondence for any Claim will be sent to you based on the most recent mailing address in our files. If you fail to provide us with your current address, or the address in our records is incomplete or is not current, then we have no obligation to attempt to resolve any Claim prior to proceeding to arbitration. To provide us notice of a Claim, send the demand via U.S. certified mail to our registered agent: Chico’s Distribution Services, LLC, d/b/a Chico's, c/o Corporate Creations International Inc., 11380 Prosperity Farms Road #221E, Palm Beach Gardens, Florida 33410. For a period of sixty (60) days from the date of receipt of notice from the other party, the parties will engage in a dialogue in order to attempt to resolve the matter, though nothing will require either of us to resolve the matter on terms with respect to which either of us, in each of our sole discretion, are not comfortable.
If we cannot resolve a Dispute as set forth in Section 11(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then, to the fullest extent permitted by applicable law, ANY AND ALL DISPUTES ARISING BETWEEN YOU AND COMPANY MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES 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, 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.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including awards of attorney’s fees and costs, in accordance with governing law, and injunctive and declaratory relief or statutory damages) and must follow the terms of this Agreement as a court would. The arbitration will be conducted by JAMS, Inc. under its rules by a single neutral arbitrator experienced in commercial disputes with both parties having a reasonable opportunity to participate in the process of selecting the arbitrator. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Discovery and/or the exchange of non-privileged information relevant to the Dispute will be governed by the JAMS rules. The arbitrator shall issue a written award setting forth the arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it. The arbitrator's award may be entered in any court of competent jurisdiction.
Payment of all filing, administration, and arbitrator fees will be governed by the JAMS rules. If you are an individual consumer and you initiate the arbitration, we shall pay all arbitration administrative fees and fees for the arbitrator’s services, other than the $250 filing fee required for you to initiate a claim. If we initiate the arbitration against you, we will pay all arbitration administration fees and expenses. However, if the arbitrator determines that either our or your claim(s) were frivolous or asserted in bad faith, the party asserting such claims shall be responsible for, and the arbitrator shall award to the other party, reimbursement of any arbitration fees and its costs (including attorney’s fees and costs).
Otherwise, if you initiate the arbitration, other than your initial non-refundable filing fee: [a] we will reimburse the filing, administration and arbitrator fees for claims totaling less than $10,000, and [b] in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees of the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation, regardless of the outcome of the arbitration. Likewise, in the event the arbitration is held in California and you do not prevail in the Dispute, we will not seek attorneys' fees and costs in arbitration unless permitted by law. If any party files a court claim that is required by these Terms to be arbitrated, then that party will reimburse the other party’s reasonable legal fees in order to compel arbitration. This arbitration provision shall survive termination of these Terms or the Service.
Limited Time to File Claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 11(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 11(A); (b) filing for arbitration with JAMS as set forth in Section 11(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 any Dispute.
The foregoing provisions of this Section 11 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 any Claim.
No Class Action Matters.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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 except in the event that substantially similar claims by the same or related counsel as to your claims are filed at or around the same time as your claim; you agree that your claim may be temporarily stayed, phased, or consolidated with such substantially similar claims to allow the arbitration body to establish efficient and fair adjudication procedures with respect to all such claims. 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, except as set forth above, 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 11(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 11(F). Notwithstanding any other provision of this Section 11, 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.
Federal and State Courts in Lee County, Florida
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 Claim arising hereunder may only be instituted in the state or federal courts with competent jurisdiction located in Lee County, Florida and may only be instituted after the process set forth in Section 11(A) has been completed. Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.
Small Claims Matters Are Excluded from Arbitration Requirement
Notwithstanding the foregoing, either of us may bring a qualifying Dispute (but not Excluded Disputes) in any small claims court of competent jurisdiction after the process set forth in Section 11(A) has been completed.
Notwithstanding any other provision in these Terms to the contrary, to the extent Company makes a material change to this Section 11, such change will not apply to any dispute that you provided Company notice of prior to the change.
12. Disclaimer Of Representations And Warranties
Your access to and use of the Service is at your sole risk. The Service is provided on an "As is", "As available", and "With all faults" basis. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the "Company Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
- the Service (including the Content and the User-Generated Content);
- the functions, features, or any other elements on, or made accessible through, the Service;
- any products, services or instructions offered or referenced at or linked through the Service;
- security associated with the transmission of your User-Generated Content transmitted to Company via the Service;
- whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
- whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
- whether any defects to or errors on the Service will be repaired or corrected;
- whether your access to the Service will be uninterrupted;
- whether the Service will be available at any particular time or location; and
- whether your use of the Service 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.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
13. Limitations of our liability
To the fullest extent permitted by law, 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 (except in New Jersey as to the availability of punitive damages under the New Jersey fraud act), incidental, or consequential losses or damages that are directly or indirectly related to:
- the Service (including the Content and the User-Generated Content);
- your use of or inability to use the Service, or the performance of the Service;
- any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Service;
- any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any errors or omissions in the Service’s technical operation; or
- 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 Service).
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 Service 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.
14. 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 Service, 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, service, or intellectual property owned, licensed, used or controlled by company (including your licensed user-generated content) or a licensor of company.
15. Updates to Terms
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). As our Service evolves, the terms and conditions under which we offer the Service may prospectively be modified and we may cease offering the Service under the terms or additional terms for which they were previously offered. Accordingly, each time you sign in to or otherwise use the Service you are entering into a new agreement with us on the then applicable terms and conditions and you agree that we may notify you of other terms by posting them on the Service (or in any other reasonable manner of notice which we elect), and that your use of the Service after such notice constitutes your going forward agreement to the other terms for your new use and transactions. Therefore, you should review the posted terms of service and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). The new terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the terms of service (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, your account and the email you associated with your account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services. Notwithstanding our right to modify these Terms, we agree that any such modification to the dispute and/or arbitration requirements in Section 11 shall not apply to claims arising prior to the date of such modification.
16. General Provisions
Company’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Company a right of consent or approval, or permits Company to exercise a right in its "sole discretion," Company may exercise that right in its sole and absolute discretion. No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.
Applicable Law. 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 Florida, without regard to its conflicts of law provisions.
Indemnity. 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 Service and your activities in connection with the Service; (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 Service or your activities in connection with the Service; (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) Company Parties’ 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.
Operation of Service; Availability of Products and Services; International Issues. Company controls and operates the Service from its U.S.-based offices in the U.S.A., and Company makes no representation that the Service is appropriate or available for use beyond the U.S.A. If you use the Service 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 Service 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 Service and/or the provision of any content, program, product, service, or other feature described or available on the Service 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, service, 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.
Export Controls. Software related to or made available by the Service may be subject to export controls of the U.S.A. No software from the Service may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.
Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word "including" is used in these Terms or any Additional Terms, the word will be deemed to mean "including, without limitation,". The original language of these Terms is English. If the Terms are translated into any language other than English, the English language version of these Terms will prevail to the extent of any conflict.
Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Investigations; Cooperation with Law Enforcement; Termination; Survival. Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from Company, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
Assignment. Company may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
California Consumer Rights and Notices. 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.
17. Terms Applicable for Apple Device Users
If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):
- To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Company and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.
- The license granted to you in Section 3 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
- You acknowledge that Company, and not Apple, is responsible for providing the Service and Content thereof.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
- To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
- Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Company, Company and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
- When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
- You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.