Terms and Conditions
Updated: November 1, 2021
Please read the following terms and conditions (the “Terms”) carefully before using the DevaCurl website (the “Site”). Deva Concepts, LLC (referred herein as “DevaCurl,” “we,” “our,” or “us”) operates the Site and provides products and services via the Site (collectively, the “Service”).
By (i) accessing the Site in any manner (whether automated or otherwise), (ii) purchasing or downloading something from us via the Site or (iii) providing any User Content (as defined below), you are using the Service and agree to be bound by these Terms and any additional terms and conditions that are referenced below or otherwise may apply to specific areas of the Site.
Certain features, products or software that you purchase or download from the Site may be subject to additional terms and conditions presented to you at the time that you use, purchase or download them. When you decide to enter a contest or sweepstakes, we present the terms and conditions for the contest or sweepstakes to you. In addition, some areas of the Site are provided by our third-party partners and are subject to separate terms and conditions of use.
You represent that you are legally able to accept these Terms and affirm that you are of legal age to form a binding contract or have obtained parental or guardian consent to do so. If you do not agree to these Terms, you may not use the Site. Neither we nor the wireless carriers will be liable for any delays in the receipt of, or failure to deliver, any text messages and text message services are provided on "as is" basis.
To the extent permitted by applicable law, we reserve the right to change these Terms at any time. Such changes will be effective when posted, provided that we may only amend the alternative dispute, venue and time limit of claims provisions to the extent allowed by applicable law. Any changes made to the Terms will only apply prospectively. By continuing to use the Site after we post any such changes, you accept the Terms as modified.
We reserve the right to refuse service to anyone for any reason at any time.
NOTE: THESE TERMS CONTAIN A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “BINDING ARBITRATION” SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF SERVICE AND WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND US OR OUR AFFILIATES. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN THE “BINDING ARBITRATION” SECTION BELOW.
Rules of Conduct
There are a few rules of conduct that you are required to follow when you use the Service:
- Do not sell or resell any of the products you have received or purchased from us. Any product that we may provide for you is for your personal use only.
- Do not use our products for any illegal or unauthorized purpose.
- Do not "harvest" (or collect) information from the Site using an automated software tool or manually on a mass basis (unless we have given you separate written permission to do so). This includes, for example, information about other users of the Site and information about the offerings, products, services and promotions available on the Site.
- Do not use automated means to access the Site, or gain unauthorized access to the Site or to any account or computer system connected to the Site. This prohibition does not apply to search engines accessing the Site solely for web indexing purposes.
- Do not "stream catch" (download, store or transmit copies of streamed content).
- Do not obtain, or attempt to obtain, access to areas of the Site or our systems that are not intended for access by you.
- Do not "flood" the Site with requests or otherwise overburden, disrupt or harm the Site or its systems.
- Do not circumvent or reverse engineer the Site or its systems.
- Do not restrict or inhibit another user or users from using and enjoying the Site.
- If you post something to the Site, such as comments, product reviews or other content, do not post anything that:
- infringes any third party intellectual property right (such as copyrights),
- is defamatory (i.e., something that is negative and untrue about another person or entity),
- divulges another person's or entity's confidential or private information or trade secret,
- is fraudulent, unlawful, threatening, harassing, abusive, obscene, or discriminatory,
- encourages criminal conduct,
- advertises or solicits business for products or services other than those that are offered and promoted on the Site, or
- contains any virus, malware, spyware or other harmful content or code.
You also must comply with all applicable laws and contractual obligations when you use the Service.
Products and Services
Prices for our products are subject to change without notice. We shall not be liable to you or to any third party for any price change.
Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to return or exchange only according to our Satisfaction Guarantee.
We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products or services to be provided to you that we believe, in our sole discretion, may result in violation of the Terms.
We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis.
Occasionally there may be information on the Site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site or in the Service is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information on the Site or in the Service, including without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Site or in the Service, should be taken to indicate that all information on the Site or in the Service has been modified or updated.
We have made every effort to display as accurately as possible the colors and images of our products. We cannot guarantee that your computer monitor's display of any color will be accurate.
Orders and Billing
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. We will not be held responsible for any losses related to services in which the loss was a result of inaccurate information being provided by you or not being updated.
You agree to provide current, complete and accurate purchase and account information for all purchases.
Ownership of Site Content
We or our licensors or partners own the intellectual property rights in the content and materials displayed on the Site. You may use the Site (including such content and materials) for your own personal, non-commercial use, but you may not use it for commercial purposes. You may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Site unless explicitly authorized in these Terms or by the owner of the materials. You may, however, from time to time, download and/or print one copy of individual pages of the Site for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.
Please do not send us your ideas for our business. We are always thinking and creating, and we may have similar ideas of our own. To avoid any disputes between us relating to ideas that you have submitted to us you agree that, if you send us your ideas, you are giving us the right to use them, and you waive and release us from claims that we have used your ideas without your permission.
By making any Site Content (as defined below) or Social Media Content (as defined below) (together, “User Content”) available, you agree to these Terms, including the following terms:
- You hereby grant to DevaCurl and its affiliates, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, and their respective retail partners, marketing or public relations agencies (“Licensees”) (a) a royalty-free, fully-paid, perpetual, irrevocable, non-exclusive, transferable, sublicensable, worldwide license to use your User Content, including alterations thereof, in any form or media (including but not limited to webpages and social media pages operated by Licensees, promotional e-mails and advertisements, and any and all other marketing, promotional and advertising materials) and via any technology (whether it exists now or is created in the future) to be determined in Licensees’ sole discretion, and (b) the right to use your username, real name, image, likeness, descriptions of you, statements, audio, audio/visual or video recordings of you, and biographical, location or other personal or identifying information (“Characteristics”) in connection with any use of your User Content.
- Licensees may use, display, reproduce, distribute, transmit, create derivative works from, combine with other materials and edit your User Content and/or Characteristics in any manner in their sole discretion, with no obligation to you whatsoever.
- You hereby agree and represent and warrant that (1) you are solely responsible for your User Content, (2) you own all rights in and to your User Content and/or have obtained appropriate rights and permissions from any and all other persons and/or entities who own, manage or otherwise claim any rights with respect to such User Content, and have the right to grant us these rights, (3) you are of legal age to form a binding contract, and (4) the User Content does not infringe any third party intellectual property right, does not divulge another person's or entity's confidential or private information or trade secret, is not defamatory, fraudulent, unlawful, threatening, harassing, abusive, obscene or discriminatory, and does not encourage criminal conduct.
- You hereby release, discharge and agree to hold Licensees, and any person acting on Licensees’ behalf, harmless from any liability related in any way to Licensees’ use of your User Content.
For the purposes of these Terms: (a) “Site Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials (collectively “Content”) that Site visitors post, provide or otherwise make available through the Site, including product reviews; and (b) “Social Media Content” means any social media Content (including photos, captions, hashtags, comments and location information from social media websites or platforms) that either (1) a user grants us consent to use by replying to our authorization request with the hashtag #YESDEVA or such other hashtag that we indicate means acceptance in the applicable request for consent, or (2) uses our brand hashtag(s) (including #devacurl), or tags @DevaCurl or @DevaCurlPro.
We may contact users to ask to feature their social media Content on the Site or our social media pages or channels or in promotional materials. We may also engage third party service providers to facilitate the collection of such Content for our use.
Responsibility for Public Postings and Content
Responsibility for what is posted in public areas of the Site lies with each user – you alone are responsible for the material you post or otherwise make available in public areas of the Site. You alone are responsible for assessing the credibility of other user postings. We have no obligation to monitor, edit or delete any material that you or others may post or otherwise make available in such areas. However, we reserve the right do so. We are not a publisher of user posts, and we are not responsible for their accuracy or legality.
You also understand and agree that any action or inaction by us or any of our directors, officers, stockholders, employees, consultants, agents or representatives (collectively, "Our Representatives") to prevent, restrict, redress or regulate content, or to implement other enforcement measures against any content, conduct or potential Terms violation is undertaken voluntarily and in good faith, and you expressly agree that neither we nor any of Our Representatives shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of these Terms.
Although Our Representatives may moderate content, conduct and Terms compliance on the Site at our discretion, Our Representatives have no authority to make binding commitments, promises or representations to anyone that they or anyone else on our behalf will "take care" of any alleged problem or complaint, or that they or anyone else on our behalf will otherwise stop, cure or prevent any problem, content, conduct or purported Terms violation from occurring or recurring. Accordingly, you further agree that any representation (written or verbal) by any of Our Representatives (or by anyone else acting on our behalf or by anyone purportedly acting on our behalf) that we (including but not limited to any of Our Representatives, anyone else acting on our behalf, or anyone purportedly acting on our behalf) would or would not prevent, restrict, redress or regulate content (including, without limitation, screen, block, moderate, review, remove, terminate, delete, edit or otherwise stop, cure or exclude any content), or to implement other enforcement measures against any content, conduct or potential or purported Terms violation is superseded by this provision and is non-binding and unenforceable. Specifically, you agree that we, Our Representatives and anyone else authorized to act on our behalf shall in no circumstance be liable as a result of any representation that we, Our Representative or anyone else on our behalf would or would not restrict or redress any content, conduct or potential or purported Terms violation. This paragraph may not be modified, waived or released except by a written agreement, dated and signed by our General Counsel and dated and signed by the individual or entity to whom the modification, waiver or release is granted.
Site Registration and Log In
To access certain features or areas of the Site, you may be required to provide personal and/or demographic information as part of a registration or log-in process. In addition, certain features of the Site are only available to our customers, and to access those areas of the Site you will be required to log in using your username and password.
You agree to provide true, accurate, current and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up-to-date (including credit card numbers and expiration dates, so that we can complete your transactions, and your contact information, including your most current telephone number, so that we can reliably contact you). The information you submit must describe you (you may not impersonate another person or entity), and you may not sell, share or otherwise transfer your account information. If you change or deactivate the phone number you provided, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive our standard marketing Text Messages unless you also unsubscribe via the above procedures.
You are responsible for all activity occurring when the Site is accessed through your account, whether authorized by you or not. Therefore, if you create an account, be sure to protect the confidentiality of your account password. We are not liable for any loss or damage arising from your failure to protect your password or account information.
From time to time, we may offer promotional or offer codes that are redeemable towards a purchase of products on the Site, subject to expiration dates, product exclusions and any other restrictions as may be determined and communicated by us in our sole discretion (“Offer Codes”). Each Offer Code (i) is non-transferable, (ii) is valid for one single purchase on the Site, (iii) cannot be combined with other promotions, discounts or offers, and (iv) cannot be redeemed for cash or any cash equivalent. Offer Codes cannot be used towards taxes, or shipping charges. We are not responsible for any unauthorized use of Offer Codes. The monetary value of the Offer Code will not be refunded or credited back if the product purchased using the Offer Code is returned. Offer Codes are void if copied, transferred, sold, exchanged or expired, and where prohibited.
The communications between you and us via the Service use electronic means, whether you visit the Site or send us an email, or whether we post notices on the Site or communicate with you via email. For contractual purposes, you consent to receive communications from us in an electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
Our Site may give you the ability to choose to receive marketing text messages from us. If you do so, you are providing your prior express written consent to receive recurring marketing or promotional text messages from us. These may include messages about your shopping cart and/or items you put in your cart but did not buy. Data obtained from you in connection with any text message services may include cell phone number, provider's name and the date, time and content of text messages. Message frequency varies; messaging and data rates may apply. This service is optional and is not a condition for purchase. You can opt-out from receiving text messages from us by replying STOP to the text message you receive from us, or by sending an email to firstname.lastname@example.org. You can ask for help by emailing email@example.com. Please note that this will only opt you out of the specific text messaging program associated with that number.
Copyright Infringement Notices
If you are a copyright owner who believes in good faith that your copyrighted material has been reproduced, posted or distributed on this site in a manner that constitutes copyright infringement, please inform our designated copyright agent by sending written notice by email to firstname.lastname@example.org with the subject line “Takedown Request”. You may also contact us by U.S. Mail to 75 Spring Street, 5th Floor, New York, NY 10012, Attn: Legal. Please include the following information in your written notice: (1) a detailed description of the copyrighted work that is allegedly infringed upon; (2) a description of the location of the allegedly infringing material on the Site; (3) your contact information, including your address, telephone number, and, if available, email address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner's behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner's behalf to assert infringement of copyright and to submit the statement. We have a policy of terminating the Site usage privileges of users who are repeat infringers of intellectual property rights.
Changes to the Site
We reserve the right, subject to applicable law, to make changes to, or to suspend or discontinue (temporarily or permanently), the Site or any portion of the Site. You agree that we will not be liable to you or to any third party for any such modification, suspension or discontinuance.
Suspension or Termination of Access
We have the right to deny access to, and to suspend or terminate your access to, the Service or to any features or portions of the Service, and to remove and discard any content or materials you have submitted to the Site, at any time and for any reason, including for any violation by you of these Terms. In addition, we have a policy of terminating the Site usage privileges of users who are repeat infringers of intellectual property rights. In the event that we suspend or terminate your access to and/or use of the Service, you will continue to be bound by the Terms that were in effect as of the date of your suspension or termination.
Third Party Materials; Linking Policies
Certain content, products and services available via the Site or the Service may include materials from third parties or links to other websites or to third party sellers of products and services (such materials or websites, “Third Party Materials”). Third Party Materials are provided for your convenience only, and you access them at your own risk.
We welcome links to the Site so long as: (i) this site opens in a new browser window which displays the full version of a page of the Site (e.g., not merely one of its frames, and not an "in-line" link to a particular image or object on the Site), (ii) the link to the Site does not state or imply any sponsorship of your website or service by us or by the Site; and (iii) the Site is not display framed within or obfuscated by other content. You may not use on your site any trademarks, service marks or copyrighted materials appearing on the Site, including but not limited to any logos, without our express written consent. We reserve the right to revoke your right to link to the Site upon notice. If you receive such a notice from us, you agree to discontinue your link to the Site.
You agree to indemnify, defend and hold us and our affiliates, and our respective directors, officers, employees and agents, harmless from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees, arising from your use of the Site and/or Service, your submissions to the Site, or any violation of these Terms, or applicable law, by you or by someone accessing the Site via your account. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you agree to cooperate with us in defending such claims. This indemnification, defense and hold harmless obligation will survive these Terms and the termination of your use of the Site or Service.
We control and operate the Site from our facilities in the United States of America, and unless otherwise specified, the materials displayed on the Site or in the Service are presented solely for the purpose of promoting products and services available in the United States and Canada and the territories, possessions, and protectorates thereof. We do not represent that materials on the Site or in the Service are appropriate or available for use in other locations. If you choose to access the Site from other locations, you are responsible for compliance with local laws, if and to the extent local laws are applicable.
Applicable Law; No Waiver; Severability
These Terms, and the relationship between you and us, will be governed by the laws of the United States and the State of New York, without giving effect to any principles of conflicts of law. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavor to give effect to intentions as reflected in the provision, and the other provisions of these terms and conditions will remain in full force and effect.
Binding Individual Arbitration
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and us or any of our affiliates regarding the Site, the Service or any service thereon, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. If you have a Dispute with us or any affiliate of ours or any of our or their officers, directors, employees or agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. YOU AND WE AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY US OR OUR AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 75 SPRING STREET, 5TH FLOOR, NEW YORK, NEW YORK, 10012, ATTN: LEGAL, AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US OR OUR AFFILIATES THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH US OR ANY OF OUR AFFILIATES, YOU MUST SEND WRITTEN NOTICE TO 75 SPRING STREET, 5TH FLOOR, NEW YORK, NEW YORK, 10012, ATTN: LEGAL, TO GIVE US OR OUR AFFILIATE YOU HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If we or our affiliate you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you, us or our affiliate you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this Section.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or the entity you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by the entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the entity you have a Dispute with may initiate arbitration in either New York County, New York or the county in which you reside. In the event that you select the county of your residence, the entity you have a Dispute with may transfer the arbitration to New York County, New York in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
Severability. If any clause within this Section is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect.
Continuation. This Section shall survive any termination of these Terms or the provision of the associated services to you.
ANY DISPUTE NOT SUBJECT TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION ONLY IN the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this TERMS OF SERVICE in any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Terms in the Federal or state courts sitting in the Borough of Manhattan, City of New York, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
Disclaimer of Warranties
THE WEBSITE AND ITS CONTENT AND SERVICES ARE PROVIDED FOR ENTERTAINMENT AND PROMOTIONAL PURPOSES. WE PROVIDE THE WEBSITE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT). THIS MEANS THAT WE MAKE NO PROMISES THAT:
- THE WEBSITE WILL BE AVAILABLE AT ANY PARTICULAR TIME,
- THE WEBSITE WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS,
- THE INFORMATION ON THE WEBSITE WILL BE ACCURATE OR UP-TO-DATE,
- THE WEBSITE OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT WILL BE SECURE FROM UNAUTHORIZED ACCESS,
- INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THE WEBSITE WILL REMAIN RETRIEVABLE AND UNCORRUPTED (UNLESS WE PROMISE THIS IN A SEPARATE AGREEMENT WITH YOU), OR
- THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.
WE LIKEWISE MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE WEBSITE. ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE WEBSITE ARE PROVIDED "AS IS", EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A SEPARATE AGREEMENT ENTERED INTO BETWEEN YOU AND US OR BETWEEN YOU AND A THIRD PARTY.
IF YOU PURCHASE A PRODUCT OR SERVICE FROM A THIRD PARTY AFTER FOLLOWING AN AD OR LINK ON THE WEBSITE, THE TERMS OF SALE FOR YOUR PURCHASE ARE BETWEEN YOU AND THE THIRD PARTY FROM WHOM YOU MADE THE PURCHASE. WE ARE NOT RESPONSIBLE FOR SUCH THIRD-PARTY PRODUCTS OR SERVICES OR FOR DISPUTES BETWEEN YOU AND THEIR SELLERS.
YOU AGREE THAT USE OF THE WEBSITE IS AT YOUR OWN RISK. ALTHOUGH WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE WEBSITE IS ACCURATE AND UP-TO-DATE, WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION (INCLUDING PRICING) AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE WEBSITE, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE WEBSITE. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, SUPPORT DOCUMENTATION, BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, AND OTHERWISE ON THE WEBSITE OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO THE WEBSITE BY USERS, NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.
THESE DISCLAIMERS APPLY TO US AND OUR AFFILIATED AND RELATED COMPANIES AS WELL AS THIRD PARTIES THAT ARE INVOLVED IN THE CREATION, PRODUCTION OR DISTRIBUTION OF THE WEBSITE, AND ANY OF THEIR EMPLOYEES AND AGENTS.
Limitations of Liability
IF YOU ARE DISSATISFIED WITH THE WEBSITE, OR ANY MATERIALS, PRODUCTS, OR SERVICES ON THE WEBSITE, OR WITH ANY OF THE WEBSITE'S TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE.
YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES) ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE WEBSITE (OR THE CONTENT, MATERIALS AND FUNCTIONS PROVIDED AS PART OF THE WEBSITE), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY, EVEN IF WE KNEW, SHOULD HAVE KNOWN OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING AND WITHOUT LIMITING THE FOREGOING, YOU AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, THAT OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OF ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY RELATING TO THE USE OF THE WEBSITE, WILL NOT EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID TO US, IF ANY, FOR USE OF THE WEBSITE, OR, IF APPLICABLE, FOR USE OF THE SPECIFIC WEBSITE FEATURE OR SERVICE FROM WHICH THE CLAIM IN QUESTION FIRST AROSE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
THIS SECTION DOES NOT AFFECT OUR LIABILITY FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, NOR ANY OF YOUR MANDATORY, NON-WAIVABLE STATUTORY RIGHTS APPLICABLE IN YOUR JURISDICTION OF RESIDENCE.
Notice to California Consumers
Under California Civil Code Section 1789.3, California users of the Site receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
These Terms, together with any additional terms and conditions that are referenced herein or otherwise may apply to specific areas of the Site, constitute the entire agreement between us and you with respect to the Site. This agreement is personal to you and you may not assign it to anyone.
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. These Terms are not intended to benefit any third party, and do not create any third-party beneficiaries. Accordingly, these Terms may only be invoked or enforced by you or us.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO USE OF THE WEBSITE, OR THESE TERMS OF SERVICE, MUST BE FILED BY YOU WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ACCRUED OR BE PERMANENTLY BARRED.