DATE LAST MODIFIED: May 14, 2012
CHANGES TO SERVICES, AGREEMENT AND/OR WEBSITE
Fawn Shoppe may amend any part of this Agreement at any time, which amended terms will be effective two (2) days after initial posting on the Website. In addition, Fawn Shoppe may, without prior notice, add, delete or modify some or all of the Services and/or content available on the Website at any time in its sole discretion. You should review this Agreement periodically to ensure you become aware of changes made to this Agreement by Fawn Shoppe from time to time.
TERMS OF SALE
In the event you purchase any products or materials on the Website, Fawn Shoppe’s Terms of Sale (together with the remainder of this Agreement) shall be binding on you.
By submitting a question on any page within the Website, posting any content to the Website and/or making any submission to the Website, you hereby understand and agree that you have established a business relationship between you and Fawn Shoppe. As such, you agree that Fawn Shoppe may contact you using contact and/or other information you provided with information, surveys and offers of services available through Fawn Shoppe, the Website or any other website owned or operated by Fawn Shoppe or an affiliate of Fawn Shoppe from time to time. You hereby consent to any such communication, phone calls or e-mails even if your phone number is on any Do Not Call list or if your e-mail is on any other restricted access list. In the event you wish to opt out of receiving any such communications from Fawn Shoppe, please send an e-mail to [email protected] to be removed from any contact lists.
Fawn Shoppe hereby grants you a non-exclusive, nontransferable, revocable limited license to access and use the Website and its contents, strictly in accordance with this Agreement and solely for the permitted uses described in this Agreement. This license and authorization is not a transfer of title in any content posted at the Website and is subject to strict compliance with the rules and other terms of this Agreement.
WEBSITE ACCESS AND RULES
In consideration of the license and authorization Fawn Shoppe grants you in this Agreement to use the Website, you agree to abide by all the terms of this Agreement and any additional restrictions displayed on the Website, as and when they are updated from time to time, including, without limitation, the rules contained in this Section. This Section includes certain activities that are expressly not permitted on the Website. Inclusion of these prohibited uses is not intended and should not be construed to modify any description of permitted uses in this or any other Section of this Agreement and you may not construe the fact that a particular activity is not described as a prohibited use in this Section as an indication of permission to engage in that activity if it is not consistent with the permitted uses. Fawn Shoppe reserves the right to remove any content you post to the Website, block the sending of any inquiry or other content it deems inappropriate in its sole discretion, and may terminate your or any other user’s access to the Website at any time in its sole discretion for any or no reason. While Fawn Shoppe reserves the right to monitor all postings and/or content posted at the Website, it has no obligation to do so.
You may use the Website only in good faith for your own use for the purposes described herein. You may download and print out portions of the content from the Website for non commercial purposes provided that you follow the rules in this Agreement.
Except as expressly permitted under other provisions of this Agreement, you may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose without Fawn Shoppe’s express prior written consent and approval (which consent may be withheld at Fawn Shoppe’s sole discretion).
You may not create compilations or derivative works of the Website, the Website content or any other materials from the Website.
You may not use the Website, the Website content, or any other materials from the Website in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of Fawn Shoppe or any third party.
You may not use the Website or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to you on or through the Website to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that is false; contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals; you are restricted from using under contractual restrictions or fiduciary obligations, including, without limitation, inside information and proprietary and confidential informationlearned or disclosed as part of an employment relationship or under nondisclosure agreements; you are restricted from using under any law; infringes upon the intellectual property rights of any third party; or contains software viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
Other Prohibited Uses
You may not use the Website for any purpose that: is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or otherwise violates Fawn Shoppe’ rules or policies; victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race ethnicity, age, disability, or any other classification protected by law; invades any person’s or entity’s privacy or other rights; constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling; misidentifies yourself or impersonates any person or entity, including, without limitation, any employee or representative of Fawn Shoppe, or falsely states, implies, or otherwise misrepresents your affiliation with a person or entity by, for example, pretending to be someone other than yourself or pretending to represent a company or organization that you are not affiliated with or authorized to represent; or could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
Others’ Personal Information
You may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent.
Harm to Minors
You may not take any action on the Website or use the Website content to harm minors in any way.
You may not use the Website or any Website content to solicit business or to advertise any product or service, or in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
Certain portions of the Website may be limited or restricted to registered members or may otherwise require that you provide certain information. By using any such service or portion of the Website, you represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain and promptly update the accuracy of the information; (c) the person submitting information to Fawn Shoppe is eighteen (18) years of age or older; and (d) your use of such services does not violate any applicable law or regulation. Fawn Shoppe shall have the right to terminate or limit your access to any restricted area in its sole and absolute discretion at any time and for any reason. You are solely responsible for any and all use of your account. You are solely responsible for your interactions with other companies and/or individuals through the Website or in connection with the Website.
COPYRIGHT AND TRADEMARK NOTICES
All contents of the Website are: Copyright © 2012 Fawn Shoppe LLC. All rights reserved. Other product, material and/or company names mentioned herein or within the Website may be the trademarks or service marks of their respective owners. To this end, you may not, without the prior, written consent of Fawn Shoppe (which consent may be withheld at Fawn Shoppe’s sole discretion) or the applicable copyright holder (which consent may be withheld at the sole discretion of such holder), modify, publish, transmit, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit, any of the content posted at the Website or otherwise owned by Fawn Shoppe or any of its licensors.
In exchange for your use of the Website, you hereby grant to Fawn Shoppe an unlimited, irrevocable, fully-paid, transferable, non-exclusive worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform and display any content, photographs or other materials you post to the Website or any forum contained in the Website, alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees. Fawn Shoppe does not assert any ownership over your content or any Posting; rather, as between us and you, subject to the rights granted to us in this Agreement, you retain full ownership of all of your content and any intellectual property rights or other proprietary rights associated therewith subject to the license granted herein.
DISCLAIMERS AND LIMITATIONS
Fawn Shoppe intends that the information contained in the Website be accurate and reliable; however, errors sometimes occur. In addition, changes and improvements to the information provided herein or on the Website may be made by Fawn Shoppe at any time. THE WEBSITE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED "AS IS, WHERE IS AND AS AVAILABLE." FAWN SHOPPE AND/OR ITS SUPPLIERS DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE WEBSITE AND ANY INFORMATION, SOFTWARE, PRODUCTS, MATERIALS AND SERVICES PROVIDED WITHIN OR THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, OR (II) AS TO THE RESULTS THAT MAY BE OBTAINED BY USE OF THE WEBSITE, THE SUBMISSION OF ANY INQUIRY OR ANY OTHER USE OF FAWN SHOPPE'S SERVICES. USE OF THE WEBSITE AND/OR FAWN SHOPPE'S SERVICES IS AT YOUR OWN RISK. FAWN SHOPPE IS NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE WEBSITE OR WITH THE DELAY OR INABILITY TO USE THE WEBSITE, OR FOR ANY INFORMATION, PRODUCTS AND/OR SERVICES OBTAINED THROUGH THE WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FAWN SHOPPE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. In all events, the aggregate liability of FAWN SHOPPE, its owners and agents for any reason and upon any cause of action, whether in contract, tort or otherwise, shall not exceed the amount of fees paid by you to FAWN SHOPPE during the 1-month period immediately preceding the date on which the applicable claim arose.
UNAVAILABILITY OF WEBSITE
You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet and the Website. While it is Fawn Shoppe’s objective to make the Website accessible twenty-four (24) hours per day, seven (7)i days per week, the Website may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of Fawn Shoppe, access to the Website may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, Fawn Shoppe shall not be liable in any way for any delay in responding to an inquiry or question forwarded by you or the effects any delay or unavailability may have on you. YOU AGREE THAT FAWN SHOPPE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE.
RELEASE AND INDEMNITY
Without limiting the generality of the disclaimers set forth in this Agreement, you hereby waive and release Fawn Shoppe, Fawn Shoppe’s manufacturers and affiliates and each of their respective past and present equity owners, directors, managers, members, shareholders, officers, employees, agents, contractors and representatives, successors and assigns (collectively, “Fawn Shoppe Releasees”) from any damages and claims of any sort, whether direct or otherwise, that arise out of or result from your use of the Website, the Website content and any products offered through the Website.
You will indemnify and hold harmless the Fawn Shoppe Releasees against any claim or demand made by any third party and any damages, costs, liabilities and expenses, including, without limitation, attorneys’ fees, any indemnified party incurs as a result of such a claim or demand arising out of (a) any content you submit or post to or transmit through the Website, (b) your use of or connection to the Website, (c) your violation of this Agreement or your violation of any rights of another person, (d) any activity carried out by another person using your account or password with your knowledge or (e) any product liability or other liability associated with any product or material you purchase from a manufacturer or distributor.
THIRD PARTY CONTENT
The Website and the Website content may contain or provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or e-mailed or otherwise transmitted through the Website (“Third Party Content”) that may include content you find to be offensive, indecent or objectionable. The third party from whom Third Party Content originates is solely responsible for it and Fawn Shoppe assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, Fawn Shoppe has no liability of any kind to you or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation, and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless Fawn Shoppe expressly states in writing to the contrary, Fawn Shoppe neither endorses nor adopts as its belief any such statements. Fawn Shoppe provides information in articles Fawn Shoppe posts or links to through the Website only for educational and general informational purposes and not as professional advice. Fawn Shoppe has made no attempt to verify any information contained in such articles.
As a convenience to you, the Website may contain links to websites that are owned and operated by third parties that are not affiliated with Fawn Shoppe. When you use these links, you will leave the Website and Fawn Shoppe will have no ability to protect your interests. You visit linked websites at your own risk and it is your responsibility to take any protective measures to guard yourself and your computer against viruses and other destructive elements. Fawn Shoppe is not responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked website.
ERRORS AND DELAYS
Neither Fawn Shoppe, any supplier or licensor or any owner or agent of any such person or entity is responsible for any errors or delays in responding to an inquiry, question or submission, including, without limitation, those caused by (i) an incorrect e-mail address or telephone number provided by you, (ii) the failure of any individual to timely respond to a question or submission, or (iii) technical problems.
Any claim or controversy arising out of or relating to the use of the Website or to any acts or omissions for which you may contend Fawn Shoppe is liable, including but not limited to any claim or controversy as to arbitrability ("Dispute"), shall be finally, and exclusively, settled by arbitration. The arbitration shall be held before one arbitrator under the commercial arbitration rules of JAMS in force at that time. The arbitration shall be venued in New York. The arbitrator shall be selected pursuant to the JAMS rules. Should no JAMS rule regarding the selection of an arbitrator be in effect, you shall select an arbitrator from a panel of arbitrators acceptable to Fawn Shoppe. The costs of arbitration shall be paid by the non-prevailing party.
Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in New York. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages, as limited, however, by the Disclaimers and Limitations Section of this Agreement, and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of an arbitration under this Agreement with an arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved.
Should a Dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and Fawn Shoppe, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in New York. If either party employs attorneys to enforce any right in connection with any Dispute or lawsuit the prevailing party shall be entitled to recover reasonable attorneys' fees from the non-prevailing party.
This Agreement, together with the Terms of Sale and any other policies or agreements posted at the Website from time to time, constitutes the entire agreement between you and Fawn Shoppe and it supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between you and Fawn Shoppe with respect to the Website and information, software, products, materials, programs and Services associated with it. This Agreement shall be subject to and construed in accordance with the laws of the State of New York, excluding its conflict of laws principles. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement shall continue in effect. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved.