Dated: September 23, 2015
ACCEPTANCE OF TERMS
PLEASE REVIEW THE TOU CAREFULLY. BY REGISTERING FOR AN ACCOUNT, SUBMITTING A LISTING, OR PLACING AN ORDER ON OR THROUGH THE SITE, OR BY OTHERWISE ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE TOU, DO NOT ACCESS OR USE THIS SITE.
THESE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE SITE, AND YOU AGREE THAT ANY SUCH DISPUTE OR CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. PLEASE REVIEW SECTION 19 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE SITE
You represent and warrant that you are: (i) over eighteen years of age or the age of majority in our jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Site under the laws of your country of residence or any other applicable jurisdiction.
2. Grant of Rights
(a)Subject to your compliance with the TOU in all material respects, Rauch grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) access and view pages from the Site for your personal, non-commercial use only; and (ii) print a reasonable number of such pages for your personal, non-commercial use only.
(b)To the extent that the Site provides access to any software, applications, learning modules or other similar components (each, an “Application”), then, subject to your compliance with the TOU in all material respects, Rauch grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Applications only in executable, machine-readable, object code form within the online platform provided by Rauch and only for your personal, non-commercial purposes.
(c)Your access to and use of the Site must further comply in all material respects with any usage guidelines, conditions of sale and other policies posted by Rauch.
(a)You may browse the Site without registering, but some features may not be accessible unless you register. In registering for the Site, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Site's registration form (the "Registration Data"); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Rauch reasonably suspects that you have done so, Rauch may suspend or terminate your account.
(b)You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone. You agree to notify Rauch immediately of any unauthorized use of your account or password or any other similar breach of security.
4.RESPONSIBILITY FOR CONTENT
(a)You acknowledge and agree that all information, data, text, software, music, sounds, photographs, graphics, videos, messages, scripts, tags and/or other materials accessible through the Site, whether publicly posted or privately transmitted ("Content"), are the sole responsibility of the person from whom such Content originated. This means that you, and not Rauch, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Site (“Your Content”), and other users of the Site, and not Rauch, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Site (“User Content”).
(b)You acknowledge and agree that Rauch has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Rauch reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing, Rauch shall have the right to remove any Content that violates the TOU or that it deems objectionable. You further acknowledge and agree that Rauch may remove your Content after any period of inactivity and has no obligation to retain Your Content for any length of time.
(c)To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOU with respect to Your Content; and (ii) Your Content does not violate any copyright, trademark, right of privacy, right of publicity or any other right of any third party.
5.RIGHTS TO CONTENT
(a)Rauch does not claim ownership of Your Content. However, you grant Rauch and its service providers a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable license to use, distribute, transmit, reproduce, modify, adapt, create derivative works from, publicly perform and publicly display Your Content. You understand that the technical processing and transmission of data associated with the Site, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(b)Except with respect to Your Content, you agree that Rauch and its licensors own all rights, title and interest in the Site and all Content, Applications and other materials within the Site.
(c)Except with respect to Your Content or as expressly permitted by the TOU, you may not: (i) use, distribute, transmit, reproduce, modify, adapt, create derivative works from, publicly perform or publicly display any Content or Application; (ii) frame or utilize any framing technique to enclose any Content or Application; (iii) decompile, decode, disassemble, reverse engineer, reverse assemble or otherwise attempt to discover any source code or the architectural framework for any Application; or (iv) access the Site for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Site or any products or services offered by Rauch. Rauch reserves all rights not expressly granted to you.
(d)The CHRISTOPHER RADKO®, CELEBRATIONS BY RADKO™, BRILLIANT TREASURES® and SHINY BRITE™ and Rauch Industries trademarks, logos and names (collectively, the “Rauch Marks”) are owned by Rauch. The absence of any name, logo or other trademark from this list does not constitute a waiver of any intellectual property rights that Rauch may have established in such name, logo or trademark. You agree not to display or use in any manner any Rauch Mark or any other names, logos or trademarks owned by Rauch without Rauch’s prior written consent.
In connection with your access to or use of the Site, you shall not:
(a)upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationship (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; or (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
(b)impersonate any person or entity, including, but not limited to, Rauch personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c)forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Site;
(d)act in a manner that negatively affects the ability of other users to access or use the Site;
(e)take any action that imposes an unreasonable or disproportionately heavy load on the Site or its infrastructure;
(f)interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
(g)use spiders, crawlers, robots or any other similar means to access the Site or substantially download, reproduce or archive any portion of the Site;
(h)sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Site, including, but not limited to, your user account and password; or
(i)violate any applicable local, state, provincial, federal, national or international law or regulation.
If you elect to provide or make available to Rauch any suggestions, comments, ideas, improvements or other feedback relating to the Site (“Suggestions”), Rauch shall be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute your Suggestion in any manner, without credit or compensation to you.
Rauch attempts to be as accurate as possible. However, Rauch does not represent or warrant that item descriptions or any other Content is accurate, complete, reliable, current or error-free.
9.RATINGS AND REVIEWS
If you submit ratings or reviews for any items on the Site, you agree, warrant and covenant that the ratings and reviews that you submit will: (a) be accurate and not false, misleading or deceptive; (b) not include any URL that directs to a resource outside the Site; (c) not reference any physical address, email address, phone number or other contact information; (d) fully disclose any connection between you and a person or company with a financial interest in the item or a directly competing item and not express sentiments by or on behalf of such person or company; and (e) not be submitted for any form of compensation or consideration from any party.
10.DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Site, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third-party. You agree that Rauch shall not be liable for any loss or damage of any kind incurred as a result of any such dealings.
11.LINKS AND EXTERNAL MATERIALS
12.MODIFICATIONS TO THE SITE
Rauch reserves the right at any time to modify or discontinue, temporarily or permanently, the Site (or any portion thereof) with or without notice. You agree that Rauch shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site (or any portion thereof).
You agree to indemnify and hold Rauch and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Rauch Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including, but not limited to, reasonable attorneys' fees, resulting from or arising out of your: (a) access to or use of the Site; (b) violation of the TOU or any law or regulation; or (c) violation of any rights of another party.
14.TERMINATION AND SURVIVAL
In the event that you violate the TOU, all rights granted to you under the TOU shall be terminated immediately, with or without notice. The provisions of the TOU that should by their nature survive termination of the TOU shall survive such termination.
15.DISCLAIMER OF WARRANTIES
(a)YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RAUCH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b)THE RAUCH PARTIES MAKE NO WARRANTY THAT: (i) THE SITE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE WILL BE ACCURATE OR RELIABLE.
16.LIMITATION OF LIABILITY
(a)YOU ACKNOWLEDGE AND AGREE THAT THE RAUCH PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE RAUCH PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL RAUCH’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SITE EXCEED THE AMOUNT RECEIVED BY RAUCH FROM YOUR TRANSACTIONS WITH RAUCH ON THE SITE IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY SUCH CLAIM AROSE.
(b)CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
The TOU shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of New York, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
18.BINDING ARBITRATION AND CLASS ACTION WAIVER
ANY DISPUTE OR CLAIM ARISING FROM OR RELATING IN ANY WAY TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOU, SHALL BE RESOLVED BY FINAL, BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable rules, including (as appropriate) its Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that the hearing will be conducted in the County and State of New York or the city in which you reside. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
WE EACH AGREE THAT ANY DISPUTE OR CLAIM ARISING FROM OR RELATING IN ANY WAY TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IF FEDERAL JURISDICTION IS NOT AVAILABLE, IN A COURT OF COMPETENT JURISDICTION IN THE COUNTY AND STATE OF NEW YORK. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH PROCEEDING.
Notwithstanding anything to the contrary, you and Rauch may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth above.
19.NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the TOU, there shall be no third-party beneficiaries to the TOU.
20.PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Site in a way that constitutes copyright infringement, please provide Rauch’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Site; (d) your address, telephone number and email address; (e) 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; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Rauch’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
Rauch Industries, Inc.
12 West 21st Street, 11th Floor
New York, New York 10010
The TOU constitutes the entire agreement between you and Rauch concerning your access to and use of the Site. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and Rauch with respect to such subject matter. The failure of Rauch to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of this TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU.