TERMS AND CONDITIONS OF WEBSITE USE
The Website (defined below) is provided by Footwear Couture("we", "our", or "us"). These "Terms and Conditions of Website Use" (this "User Agreement") govern your use of the Website, regardless of how you access or use it. By "Website", we mean the Internet domain address within which this User Agreement is posted and all features, applications, content, and downloads that are operated by us and that are available through or interact with it, and/or post links to this User Agreement.
IF YOU'RE UNDER THE AGE OF MAJORITY (which is 18 years old in most states), then your parent or guardian may be liable for some or all of your activities on the Website. Because of this, and because it’s prudent for your parent or guardian to be aware of your activities, including the websites that you visit, you should make your parent or guardian aware that you are using the Website – as this User Agreement and your use of the Website affect their legal rights and obligations.
IF YOU WANT TO USE THIS WEBSITE, then carefully read this User Agreement, as it constitutes a written agreement between you and Footwear Couture and it affects your legal rights and obligations. Each time you access and/or use the Website (other than to simply read this User Agreement), you agree to be bound by and comply with all of the terms of this User Agreement and any Additional Terms (defined below). Therefore, do not use the Website if you do not agree to all of the terms of this User Agreement and any Additional Terms.
The business realities associated with operating the Website are such that, without the limitations that are set forth in this User Agreement -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes -- Footwear Couture would not make the Website available to you.
Summary of Key Terms It's important that you read this entire User Agreement; but, here are some of the more significant terms that we want to bring to your attention:
•Each time you use the Website, this User Agreement applies to your use. Any updates to it will apply to you; so you should check back frequently for any updates.
•You may only use the Content on the Website in connection with your permitted activities on the Website – and not in an offline environment or on another website. (See Sections 1(C), 2(B), 3(A), and 3(B) below.) You may not use the Website for commercial, political, or inappropriate purposes. (See Sections 1(C), 2(B), and 3(A) below.)
•By using the Website, you will not obtain any ownership or intellectual property or other interest in it or any virtual or other items that may be used in connection with it. (See Sections 1(B), 1(C), and 9 below.)
•Except as set forth in the Privacy Statement that applies to the Website, you and Footwear Couture do not have a confidential, fiduciary, or any other special relationship by virtue of your use of the Website or your communications to Footwear Couture through or related to the Website. (See Sections 2(A)(ii) and 7 below.)
•Many types of disputes that may arise in connection with your access to and use of the Website may only be resolved by arbitration – which includes your waiver of a right to a jury trial. (See Section 13 below.)
•Footwear Couture is providing the Website to you on an “as is” basis, without any warranty of any kind, and Footwear Couture’s liability to you in connection with your use of the Website is very limited. (See Sections 14 and 15 below.) Many other limitations and disclaimers relate to your use of the Website. (See Sections 13(D) and 16 below.)
In some instances, both this User Agreement and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Website or to a service or product offered via the Website (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between this User Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Please also review the terms of the Website’s Privacy Statement.
Table of Contents
1. Website Content, Ownership, Limited License, and Rights of Others.
2. Content You Submit and Community Usage Rules.
3. Website and Content Use Restrictions.
4. Customer Service.
5. Procedure for Alleging Copyright Infringement.
6. Procedure for Alleging Infringement of Other Intellectual Property.
7. Unsolicited Ideas and Materials Prohibited; No Confidential or Special Relationship With Footwear Couture.
8. Opening and Terminating Accounts.
9. Website Access; Charges; Registration; Usage Subscriptions; Virtual Goods and Services; No Monetary Value or Property Interest; Transfers Prohibited.
10. Links by You to the Website.
11. Linked-To Websites; Advertisements; Dealings with Third Parties.
13. Dispute Resolution.
14. Disclaimer of Representations and Warranties.
15. Limitations of Liability of Footwear Couture Parties.
16. Waiver of Injunctive or Equitable Relief.
17. General Provisions.
1. Website Content, Ownership, Limited License, and Rights of Others. A.Content. The Website contains a variety of: (i) materials and other items relating to Footwear Couture and its products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Website, and the compilation, assembly, and arrangement of the materials of the Website and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Footwear Couture (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
B.Ownership. The Website (including past, present, and future versions) and the Content are owned or controlled by Footwear Couture and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Website is the property of Footwear Couture or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. Footwear Couture owns a copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Website.
C.Limited License. Subject to your strict compliance with this User Agreement and the Additional Terms, Footwear Couture grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) 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 via a standard web browser to enable display) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, an “Internet Device”) for your personal, non-commercial use only, and (ii) to use certain Content that we may from time to time make available on the Website explicitly for you for use as part of your User-Generated Content (defined in Section 2(A)(i) below) (“Footwear Couture Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the Footwear Couture Licensed Elements are made available on the Website; but we and our licensors and certain other third parties, as the case may be, retain ownership of such Footwear Couture Licensed Elements. 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 Footwear Couture’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 and/or Footwear Couture Licensed Elements, subject to certain Additional Terms.
D.Rights of Others. In using the Website, you must respect the intellectual property and other rights of Footwear Couture 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. Footwear Couture respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Website, then please see Section 5 below.
2. Content You Submit and Community Usage Rules. A.User-Generated Content.
i.General. Footwear Couture may now or in the future offer visitors to the Website the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Footwear Couture Licensed Elements included therein, “User-Generated Content”). Footwear Couture may do this through forums, blogs, message boards, social networking environments, social communities, email, and other communications functionality. Subject to the rights and license you grant in this User Agreement, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.
ii.Non-Confidentiality of Your User-Generated Content. Except as otherwise described in the Website’s posted Privacy Statement or any Additional Terms, you agree that (a) your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) Footwear Couture does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Upon Footwear Couture’s request, you will furnish us with any documentation necessary to substantiate these rights and verify your compliance with this User Agreement or any Additional Terms. You acknowledge that the Internet may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content.
iii.License to Footwear Couture of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of your User-Generated Content, you hereby grant to Footwear Couture, and you agree to grant to Footwear Couture, 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 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 media, software, formula, 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, manufacturing, and marketing products and/or services. In order to further effect the rights and license that you grant to Footwear Couture to your User-Generated Content, you also hereby grant to Footwear Couture, and agree to grant to Footwear Couture, the unconditional, perpetual, irrevocable right to use and exploit your name, personal, 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 2(A)(iii).
iv.Footwear Couture's Exclusive Right to Manage All User-Generated Content. Footwear Couture 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 Footwear Couture may, in its sole discretion, 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. Footwear Couture reserves the right to treat User-Generated Content on the Website as content stored at the direction of users for which Footwear Couture will not exercise control except to block or remove content that comes to Footwear Couture’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to Footwear Couture, or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 2(B) below) when notice of their violation comes to Footwear Couture’s attention. Such User-Generated Content submitted by you or others need not, however, be maintained on the Website by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Website.
v.Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the state in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Generated Content, or you have a lawful right to submit the User-Generated Content and grant Footwear Couture the rights to it that you are granting by this User Agreement and any Additional Terms, all without any Footwear Couture obligation to obtain consent of any third party and without creating any obligation or liability of Footwear Couture; (b) the User-Generated Content is accurate; (d) the User-Generated Content does not and, as to Footwear Couture’s permitted uses and exploitation set forth in this User Agreement, will not infringe any intellectual property or other right of any third party; and (e) the User-Generated Content will not violate this User Agreement (including the Rules) or any Additional Terms, or cause injury or harm to any person.
vi.Enforcement. Footwear Couture 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 Footwear Couture’s cost and expense, to which you hereby consent and irrevocably appoint Footwear Couture as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B.Community Usage Rules. As a user of the Website, these Community Usage Rules ("Rules") are here to help you understand the conduct that is expected of members of the Website's online communities ("Communities").
i.Nature of Rules. Your participation in the Communities is subject to all the terms in this User Agreement, including these Rules: ?Your User-Generated Content. 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. For example, your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Footwear Couture. (For example, if someone has taken a picture of you and your friend, and you submit that photo to Footwear Couture as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.)
?Speaking of Photos: No Photos, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Website, 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 permission to submit them. Additionally, if the photo, video, or image includes a minor, you must be the parent or guardian of the child, or have permission from the child’s parents or guardians, prior to submitting them.
?Act Appropriately. 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 Website. 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. If you submit User-Generated Content that Footwear Couture reasonably believes violates this paragraph, then we may take any legal action that we deem appropriate, in our sole discretion.
?Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. If you submit User-Generated Content that Footwear Couture reasonably believes violates this paragraph, then we may take any legal action that we deem appropriate, in our sole discretion.
?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 discussions with other members. However, please remember that the Communities are a public forum and User-Generated Content that you submit on the Website within a Community will be accessible and viewable by other users. Do not submit personally identifiable 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 People's Personal Information. Your User-Generated Content must 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 Footwear Couture.
?Don't Damage the Website or Anyone's Computers or Other Internet 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 Website or any computer or other Internet Device.
We reserve the right to request at any time proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Website.
ii.Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Website, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
3. Website and Content Use Restrictions. A.Website Use Restrictions. You agree that you will not: (a) use the Website for any commercial or political purpose (including for purposes of advertising, soliciting funds, collecting product prices, and selling products); (b) use any meta tags or any other “hidden text” utilizing any Footwear Couture trademarks or trade names; (c) engage in any activities through or in connection with the Website 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 Footwear Couture; (d) reverse engineer, decompile, disassemble, reverse assemble, or modify any Website source or object code or any software or other products, services, or processes accessible through any portion of the Website; (e) engage in any activity that interferes with a user’s access to the Website or the proper operation of the Website, or otherwise causes harm to the Website, Footwear Couture, or other users of the Website; (f) interfere with or circumvent any security feature of the Website or any feature that restricts or enforces limitations on use of or access to the Website, the Content, or the User-Generated Content; or (g) otherwise violate this User Agreement or any Additional Terms.
B.Content Use Restrictions. You also agree that, in using the Content (other than your User-Generated Content that does not contain any Footwear Couture Licensed Elements): (a) you will not monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Website by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (b) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (c) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Content; (d) 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; (e) you will not make any modifications to such Content (other than to the extent of your permitted use of the Footwear Couture Licensed Elements, if applicable); (f) you will not 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 to any third party or on any third-party website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by this User Agreement or any Additional Terms or with the prior written consent of an officer of Footwear Couture or, in the case of Content from a licensor, the owner of the Content; or (g) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C.Availability of Website and Content. Footwear Couture may immediately suspend or terminate the availability of the Website and Content (and any elements and features of them) for any reason, in Footwear Couture’s sole discretion, and without advance notice or liability (except as set forth in Section 9 below or any Additional Terms).
D.Reservation of All Rights Not Granted as to Content and Website. This User Agreement and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Website. 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 Footwear Couture and its licensors and other third parties. Any unauthorized use of any Content or the Website for any purpose is prohibited.
4. Customer Service. Footwear Couture will not respond to consumer and other similar inquiries sent to the addresses in Section 5 below. If you have any customer service questions related to our products or services, then as a resource please use our website at the following addresses:
Footwear Couture brands: http://FootwearCouture.com
5. Procedure for Alleging Copyright Infringement. A.DMCA Notice. Footwear Couture 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 Website, then you may send us a written notice that includes all of the following:
i.a legend or subject line that says: "DMCA Copyright Infringement Notice";
ii.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;
iii.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 Website on which the material appears);
iv.your full name, address, telephone number, and e-mail address;
v.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;
vi.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,
vii.your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
Footwear Couture will only respond to DMCA Notices that it receives by mail, e-mail or facsimile.
It is often difficult to determine if your copyright has been infringed. Footwear Couture may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Footwear Couture 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 Footwear Couture’s other rights, Footwear Couture may, in appropriate circumstances, terminate a repeat infringer’s access to the Website and any other website owned or operated by Footwear Couture.
B.DMCA Counter-Notification. If access on the Website to a work that you submitted to Footwear Couture 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:
i.a legend or subject line that says: "DMCA Counter-Notification";
ii.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 Website from which the material was removed or access to it disabled);
iii.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;
iv.your full name, address, telephone number, e-mail address, and the username of your account;
v.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 Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
vi.your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic 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 than10 and not more than 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 Website. You should also be aware that we may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
6. Procedure for Alleging Infringement of Other Intellectual Property. If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice to one of the addresses set forth in Section 5 above that includes all of the following:
a.a legend or subject line that says: “Intellectual Property Infringement Notice”;
b.a description of the intellectual property that you claim has been infringed;
c.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 Website on which the material appears);
d.your full name, address, telephone number, and e-mail 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 owner of the intellectual property, its agent, or the law;
f.a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and,
g.your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
We will act on such notices in our sole discretion. Any user of the Website that fails to respond satisfactorily to Footwear Couture with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
7. Unsolicited Ideas and Materials Prohibited; No Confidential or Special Relationship With Footwear Couture. As the world’s largest toy company, Footwear Couture employs a large staff of designers to develop new ideas and, each year, Footwear Couture solicits and receives thousands of product idea submissions from professional inventors with whom it has business relationships.
Because of this, in your communications with Footwear Couture, please keep in mind that Footwear Couture does not accept or consider any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for toys, games, videogames, books, scripts, screenplays, motion pictures, television shows, theatrical productions, music productions, or webisodes (collectively, “Unsolicited Ideas and Materials”). Therefore, you must not send to Footwear Couture (even within any of your User-Generated Content that we may request), in any form and by any means, any Unsolicited Ideas and Materials. Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User-Generated Content and licensed to us as set forth above.
Except as otherwise specifically described in the Website’s Privacy Statement or any Additional Terms, your relationship with Footwear Couture is not a confidential, fiduciary, or other type of special relationship and your Unsolicited Ideas and Materials, and anything else submitted by you (such as any questions, comments, answers, correspondence, postings, and the like) will be treated as non-confidential and non-proprietary User-Generated Content – regardless of whether you mark them “confidential”, “proprietary”, or the like. Footwear Couture will not assume any responsibility, obligation, or liability for the receipt or non-receipt of any of the foregoing. Therefore, your decision to submit any Unsolicited Ideas and Materials to Footwear Couture does not place Footwear Couture in a position that is any different from the position held by members of the general public with regard to your Unsolicited Ideas and Materials.
Footwear Couture finds that many submissions that it receives, including those from professional inventors, are already in the public domain; or are identical or substantially similar to products developed or in development by our own staff; or, for a host of many other reasons, are not novel or unique. So if, you send us any of your Unsolicited Ideas and Materials despite our request that you not do so, it’s likely they’re identical or substantially similar to ideas, concepts, and materials that, in the past, were developed by our staff or submitted to us by others. Likewise, in the future we may, without any reference to any of your Unsolicited Ideas and Materials, develop or receive from others ideas, concepts, and materials that are identical or substantially similar to your Unsolicited Ideas and Materials.
Footwear Couture’s receipt of your Unsolicited Ideas and Materials is not an admission by Footwear Couture of their novelty, priority, or originality, and it does not impair Footwear Couture’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
8. Opening and Terminating Accounts. In order to access or use some (or potentially all) of the features of the Website, you may have to become a registered user of the Website (or a portion of it). Depending upon your age, registration may require parental consent. The Website’s practices governing any resulting collection and use of your personal information are disclosed in its Privacy Statement. Your decision to provide this information is purely voluntary and optional; however, if you elect not to provide it, then you may not be able to access certain Content or Communities or participate in certain features of the Website.
If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree that:
a.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 email address for any other reason in our sole discretion.
b.You will provide 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 for as long as you use the features to which the registration relates.
c.You are solely responsible for all activities that occur under your account, password, and username, whether or not you authorize the activity (except to the extent that activities occur because someone gains access to our system without using your identifiers and password).
d.You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Internet Device so that others may not access any password protected portion of the Website using your name, username, or password. You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security. (See Section 4 above.) 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 this User Agreement, any Additional Terms, or any legal requirement or 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 (except as may be set forth in Section 9 below or any Additional Terms).
9. Website Access; Charges; Registration; Usage Subscriptions; Virtual Goods and Services; No Monetary Value or Property Interest; Transfers Prohibited. A.Right to Charge or Require Registration; Access and Fees Relating to Your Internet Device. Footwear Couture reserves the right, upon reasonable notice, to: (i) charge for access to some or all of the Website, charge for access to premium functionality or Content on some or all of the Website, or require a free subscription or account registration to access some or all of the Website (“Usage Subscriptions”); (ii) change terms and conditions for the Website or portions of the Website; and (iii) restrict access to the Website or portions of the Website, in whole or in part, based on any lawful eligibility requirements Footwear Couture may elect to impose (e.g., geographic or demographic limitations). You are responsible for obtaining and maintaining, at your sole cost, all Internet Devices and other equipment and software, and all Internet, mobile, and other services needed for you to access and use the Website.
B.Usage Subscriptions; Virtual Goods and Services. i.Right to Modify, Revalue, or Make Usage Subscriptions Free. Footwear Couture may modify, revalue, or make the Usage Subscriptions free at its sole discretion without advance notice or liability. Unless otherwise stated in any Additional Terms, in the event that Footwear Couture terminates or changes the Website, a portion of the Website, or content or functionality associated with a Usage Subscription in a way that materially diminishes the value of your Usage Subscription, then Footwear Couture will provide you with either of the following at Footwear Couture’s sole discretion: (a) a pro rata refund of your unused Usage Subscription corresponding to the value of the diminished features or portion of the terminated or changed Website; or (b) an online credit for future redemption of comparable value corresponding to the value of the diminished features or portion of the terminated or changed Website. The valuation of the pro rata refund or credit will be determined in Footwear Couture's good faith business judgment, which determination will be final. The provision of a pro rata refund or credit will be your sole and exclusive remedy with respect to Footwear Couture's termination or change of the Website in a way that materially diminishes the value of your Usage Subscription.
ii.Right to Modify, Revalue, or Make Virtual Goods and Services Free; Purchased Virtual Tender May Redeemed First. Footwear Couture may offer you the opportunity to purchase or use virtual currency, credits, points, virtual services, or virtual items (“Virtual Goods and Services”). Footwear Couture may modify, revalue, or make the Virtual Goods and Services free at its sole discretion, and such modifications may make the Virtual Goods and Services more or less common, valuable, effective, or functional. Virtual points, credits, or currency (“Virtual Tender”) in your account that was purchased with real money may be redeemed before Virtual Tender in your account that was not purchased (i.e., it was earned through experiential play), no matter when that Virtual Tender was acquired. a.If You Have a Corresponding Usage Subscription. If you have a corresponding Usage Subscription, then the use of your Virtual Goods and Services are limited to the life of your corresponding Usage Subscription, subject to any earlier modification or termination of the Website, your account, or your Usage Subscription as set forth in Sections 8 and 9.
b.If You Don't Have a Corresponding Usage Subscription. If you don’t have a corresponding Usage Subscription, then you are encouraged to use your Virtual Goods and Services as quickly as possible – because Footwear Couture makes no representations about the continued availability of such Virtual Goods and Services. The availability of such Virtual Goods and Services is subject to Footwear Couture’s right to terminate the Website or your account as set forth in Sections 8 and 9 without any refund to you for any unused or unredeemed Virtual Goods and Services.
iii.Termination or Change to Usage Subscriptions and Virtual Goods and Services. Except as set forth in any Additional Terms (such as any refund policies that may apply to a subscription service) or in Section 9(B)(i) above with respect to Usage Subscriptions, if Footwear Couture changes, suspends, or terminates any Usage Subscription or Virtual Goods and Services, then you will forfeit the changed, suspended, or terminated Usage Subscription or Virtual Goods and Services. Likewise, except as set forth in Section 9(B)(i), in any Additional Terms, or as required by applicable law, Footwear Couture is not responsible for repairing or replacing your Usage Subscription or Virtual Goods and Services, or providing you with any credit or refund or any other sum, in the event of: (a) Footwear Couture’s change, suspension, or termination of any Usage Subscription or Virtual Goods and Services; or (b) for loss or damage due to Website error, or any other reason. Pursuant to its right to terminate accounts under Section 8 above, Footwear Couture reserves the right to terminate Usage Subscriptions and Virtual Goods and Services for cause immediately at its sole discretion without advance notice or liability. In such an event you will not be entitled to a pro rata refund or credit.
C.No Monetary Value; Limited Right to Use; No Property, Economic, or Ownership Interest. Except as set forth in any Additional Terms or in Section 9(B)(i) above with respect to Usage Subscriptions, purchases of Usage Subscriptions and Virtual Goods and Services are final, nonrefundable, have no monetary value (i.e., are not a cash account or equivalent), and are purchases of only a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to use, even if they come with a durational term (e.g., a monthly subscription). Notwithstanding any agreement by Footwear Couture to provide a discretionary pro rata refund or credit in certain circumstances, you have no property, proprietary, intellectual property, ownership, economic, or monetary interest in your Usage Subscriptions or Virtual Goods and Services, which remain the exclusive property of Footwear Couture (subject only to the license set forth in Section 1(C) above, this User Agreement, and any Additional Terms). Except as set forth in this Section 9, the license may be immediately suspended or terminated for any reason, in Footwear Couture’s sole discretion, and without advance notice or liability.
D.Transfers Prohibited. Footwear Couture will not recognize the transfer of Usage Subscriptions or Virtual Goods and Services (including for “real” money or any other consideration or items of value whether inside our outside of the Website). Accordingly, except as to gift cards issued by Footwear Couture, which will be governed by Additional Terms, you may not purchase, sell, barter, gift, or trade any Usage Subscriptions or Virtual Goods and Services, or offer to purchase, sell, barter, gift, or trade any Usage Subscriptions or Virtual Goods and Services. Any such attempted transfer will be null and void.
10. Links by You to the Website. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to Footwear Couture, (b) the links and the content on your website do not suggest any affiliation with Footwear Couture or cause any other confusion, and (c) the links and the content on your website do not portray Footwear Couture or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or 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 Footwear Couture. Footwear Couture reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
11. Linked-To Websites; Advertisements; Dealings with Third Parties. A.Linked Websites; Advertisements. The Website may contain links, as part of third party ads on the Website or otherwise, to or from third-party websites (“Linked Websites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Footwear Couture. Footwear Couture may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and Footwear Couture does not assume any obligation to review any Linked Websites. Footwear Couture does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, or other items. Footwear Couture disclaims all liability in connection therewith. 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 rules issued by the operator of the Linked Websites. Footwear Couture disclaims all liability in connection therewith.
B.Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Website (including on or via Linked Websites 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). Footwear Couture disclaims all liability in connection therewith.
12. Wireless. A.Wireless Features. The Website may offer certain features and services that are available to you via your wireless Internet Device. These features and services may include the ability to access the Website’s features and upload content to the Website, receive messages from the Website, and download applications to your wireless Internet 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 Internet 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.
B.Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties – unless you cancel your registration or opt-out in accordance with any procedure established by us or by law. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Website for Wireless Features, then you agree to notify Footwear Couture of any changes to your wireless number (including phone number) and update your accounts on the Website to reflect the changes, or notify us when you wish to terminate your registration. (See Section 4 above.)
13. Dispute Resolution. Certain portions of this Section 13 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Footwear Couture agree that we intend that this Section 13 satisfies the “writing” requirement of the Federal Arbitration Act.
A.First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Website, the Content, your User-Generated Content, your Unsolicited Ideas and Materials, this User Agreement, or any Additional Terms (collectively, “Dispute”), or to any of Footwear Couture’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 13(D) below), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 13(A). Your notice to us must be sent to: Footwear Couture, 333 Continental Boulevard, El Segundo, California, 90245, U.S.A., Attention: General Counsel. For a period of 60 days from the date of receipt of notice from the other party, Footwear Couture and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Footwear Couture to resolve the Dispute or Excluded Dispute on terms with respect to which you and Footwear Couture, in each party’s sole discretion, are not comfortable.
B.Forums for Alternative Dispute Resolution. i.Arbitration. If we cannot resolve a Dispute as set forth in Section 13(A) above within 60 days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 13(B). If we cannot resolve an Excluded Dispute as set forth in Section 13(A) above within 60 days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Footwear Couture consent, in a writing signed by you and Footwear Couture’s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 13(B).
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Footwear Couture elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this User Agreement and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Footwear Couture do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 13(B)(i), then this paragraph and the remainder of this Section 13(B) will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and a legal officer of Footwear Couture consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
ii.Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this User Agreement (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Footwear Couture to pay a greater portion or all of such fees and costs in order for this Section 13 to be enforceable, then Footwear Couture will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
C.Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13(A) ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D.Injunctive Relief. The foregoing provisions of this Section 13 will not apply to any legal action taken by Footwear Couture to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Website, any Content, your User-Generated Content or Unsolicited Ideas and Materials and/or Footwear Couture’s intellectual property rights (including such Footwear Couture may claim that may be in dispute), Footwear Couture’s operations, and/or Footwear Couture’s products or services.
E.Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
F.No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 13(B)(i) above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 13(B) above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 13(G) below.
G.Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 13(B) above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Footwear Couture consent to the exclusive personal jurisdiction and venue of such courts for such matters.
14. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. YOUR ACCESS TO AND USE OF THE WEBSITE IS AT YOUR SOLE RISK.
THE WEBSITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Footwear Couture and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, "Footwear Couture Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
a.the Website (including the Content and the User-Generated Content);
b.the functions, features, or any other elements on, or made accessible through, the Website;
c.any products, services, or instructions offered or referenced at or linked through the Website (except for any specific warranties provided in additional terms provided by a Footwear Couture Party who is also a product manufacturer that are included with a product that you purchase from us);
d.security associated with the transmission of your User-Generated Content transmitted to Footwear Couture or via the Website;
e.whether the Website or the servers that make the Website available are free from any harmful components (including viruses, trojan horses, and other technologies that could adversely impact your Internet Device);
f.whether the information (including any instructions) on the Website is accurate, complete, correct, adequate, useful, timely, or reliable;
g.whether any defects to the Website will be repaired; and
h.whether your use of the Website is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED IN ADDITIONAL TERMS PROVIDED BY A Footwear Couture PARTY WHO IS ALSO A PRODUCT MANUFACTURER THAT ARE INCLUDED WITH A PRODUCT THAT YOU PURCHASE FROM US, Footwear Couture PARTIES FURTHER HEREBY 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.
15. LIMITATIONS OF LIABILITY OF Footwear Couture PARTIES. UNDER NO CIRCUMSTANCES WILL ANY Footwear Couture PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
a.the Website (including the Content and the User-Generated Content);
b.your use of or inability to use Website, or the performance of the Website;
c.any action taken in connection with an investigation by Footwear Couture Parties or law enforcement authorities regarding your access to or use of the Website;
d.any action taken in connection with copyright or other intellectual property owners or other rights owners;
e.any errors or omissions in the Website’s technical operation; or
f.any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Footwear Couture Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Website).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF Footwear Couture PARTIES TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE AND YOUR RIGHTS UNDER THIS USER AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID Footwear Couture IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.
With respect to any electronic commercial service on a Footwear Couture website, residents of California are entitled to the following specific consumer rights information: if you have a complaint, 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. See also: http://www.dca.ca.gov.
16. Waiver of Injunctive or Equitable Relief. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, USER-GENERATED CONTENT, UNSOLICITED IDEAS AND MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY Footwear Couture (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF Footwear Couture.
17. General Provisions. A.Updates to User Agreement. Footwear Couture reserves the right to modify this User Agreement and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this User Agreement and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that Footwear Couture posts them on the home page of the Website, or such later date as may be specified in them.
B.Footwear Couture's Consent or Approval. As to any provision in this User Agreement or any Additional Terms that grants Footwear Couture a right of consent or approval, or permits Footwear Couture to exercise a right in its “sole discretion”, Footwear Couture may exercise that right in its sole and absolute discretion. No Footwear Couture consent or approval may be deemed to have been granted by Footwear Couture without being in writing and signed by an officer of Footwear Couture.
C.Applicable Law. This User Agreement and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.
D.Indemnity. You agree to, and you hereby, defend, indemnify, and hold Footwear Couture 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 Footwear Couture Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your User-Generated Content; (ii) your use of the Website and your activities in connection with the Website; (iii) your breach or anticipatory breach of this User Agreement or any Additional Terms; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with your use of the Website or your activities in connection with the Websites; (v) information or material transmitted through your Internet 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; (vii) Footwear Couture Parties’ use of the information that you submit to us (including your User-Generated Content); (viii) your purported “ownership” of any usage subscriptions or virtual items; and (ix) the increase or decrease in “value” or loss of usage subscriptions or virtual items if Footwear Couture deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Footwear Couture Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Footwear Couture Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Footwear Couture 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 Footwear Couture Party.
E.Operation of Website; Availability of Products and Services; International Issues. Footwear Couture controls and operates the Website from its offices in the U.S.A. Footwear Couture makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so of 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. Subject to the terms of this User Agreement, we reserve the right to limit the availability of, restrict access to, or discontinue the Website and/or any content, program, product, service, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. Some content, programs, services, or features may be available on this Website only on a subscription or fee basis. You and we disclaim any application to this User Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
F.Export Controls. Software related to or made available by the Website may be subject to export controls of the U.S.A. No software from the Website 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 this User Agreement, 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). By downloading any software related to the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
G.Severability; Interpretation. If any provision of this User Agreement, 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 this User Agreement or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this User Agreement 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 this User Agreement or any Additional Terms, the word will be deemed to mean “including, without limitation,”.
H.Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that, except as set forth in Section 5 above, 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.
I.Investigations; Cooperation with Law Enforcement; Termination; Survival. Footwear Couture reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Website security or its information technology or other systems or networks, (ii) investigate any suspected breaches of this User Agreement and any Additional Terms, (iii) investigate any information obtained by Footwear Couture 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 this User Agreement and any Additional Terms, and (vi) discontinue the Website, 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 Footwear Couture under this User Agreement or any Additional Terms. Upon suspension or termination of your access to the Website, or upon notice from Footwear Couture, all rights granted to you under this User Agreement or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of this User Agreement and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Footwear Couture in this User Agreement, 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.
J.Assignment. Footwear Couture may assign its rights and obligations under this User Agreement and any Additional Terms, in whole or in part, to any party at any time without any notice. This User Agreement 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 Footwear Couture.
K.No Waiver. Except as expressly set forth in this User Agreement or any Additional Terms, (i) no failure or delay by you or Footwear Couture 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 this User Agreement 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.