Welcome to RTW Retailwinds, Inc., (the Company) which owns and operates New York and Company, Fashion to Figure, and Uncommon Sense stores and associated websites, and operates Happy X Nature stores and associated websites, and its family of brand websites and mobile applications, including nyandcompany.com, fashiontofigure.com, uncommonsense.com, happyxnature.com the Company mobile application and any other websites or applications that direct visitors or users to the Terms and Conditions (collectively the “Site”). This site and related services, including the sending of promotional text messages, are provided subject to the Terms and Conditions (the “Terms”). In the Terms, "we" or "us" refers to the Company and its brands. "You" or "your" refers to the person viewing and/or making a purchase through the site.
Please read the following information carefully, as your access and use of the Site is conditioned on your agreement to and compliance with the Terms. Your continued use of this Site will indicate your agreement to be bound by the Terms as set forth below. Do not use the Site if you disagree with any part of the Terms.
Availability and Use of Our Site; Ownership; User Content
To use our Site or purchase any products or services we make available on our Site, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence or if you are a minor, have a valid credit card where an adult has listed you as an authorized user of their card. Prior to the purchase of any products or services, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card or otherwise use a valid gift card.
All pages and Content within the Site (including past, present and future versions) are the property of Company and/or its subsidiaries, affiliates, vendors, and licensors. Company grants you a nonexclusive license to use the Site solely for your personal, non-commercial use, as detailed below. When using the Site, you must respect the intellectual property and other rights of Company and third parties. Your unauthorized use of Content may violate applicable laws, such as copyright, trademark, privacy, publicity, communications, and other laws, and may subject you to personal liability, including potential criminal liability.
The Site contains a variety of “Content” which includes information, items and other materials relating to Company, including apparel, products and services, as well as similar items from our licensors and other third parties. All Site Content is the property of Company and this extends to all trademarks, copyrighted material and other intellectual property, including but not limited to the layout of the Site and the information contained in the Site, such as articles, customer reviews and other comments, posts, text and data files, images, scripts, designs, graphics, audio and video files, meta tags or any other “hidden text” utilizing any trademarks, and other technology. The Site, its Content and User Content are owned or controlled by Company and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Site is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible. Company owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Site.
Subject to your compliance with the Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability.
Company does not seek unsolicited ideas or materials for new products or services, or suggestion for improvements to existing products or services. Any unsolicited ideas and materials you provide through the Site are deemed User Content and licensed to us as set forth above. In addition, we retain any and all rights held by members of the general public with regard to the unsolicited ideas and materials you provide through the Site.
We may suspend or terminate the availability of the Site and any Content (and any elements and features of them), in whole or in part, for any reason, in our sole discretion, and without advance notice to you.
Site Use and Content Restrictions
By using our Site you acknowledge and agree that you will not use the Site: (i) for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) to engage in any activities that are unlawful, offensive, obscene, threatening, harassing or abusive, violate any right of any third party, or that we may otherwise deem objectionable; (iii) in a manner to reverse engineer, decompile or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site; (iv) to engage in any activity that interferes with the proper operation of the Site or another user’s access to the Site, or otherwise causes harm to us, the Site, or other users of the Site; (v) to interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site, the Content, or the Communications; (vi) to harvest, collect or otherwise use any information, including other users’ email addresses or other personally identifiable information about other users, without the our express consent or the consent of such users; (vii) to gain unauthorized access to the Site, other computer systems or networks connected to the Site; or (viii) in any other manner that violate the Terms.
You are prohibited from using any Content on the Site without the express written consent from Company or our licensors. Your continued used of our Site indicates your agreement that (i) you will not monitor, gather, copy, or distribute the Content through manual process or by use of any software, extraction tool or other automatic device, including robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by the Terms or any Additional Terms or with the prior written consent of an officer of Company or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
Reservation of All Rights Not Granted as to Content and Site.
All rights not granted expressly in the Terms are reserved by Company, its licensors and other third parties. The Terms grant you narrow, limited rights to use and access the Site and Content. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.
Any unauthorized use of any Content or the Site for any purpose is prohibited.
Copies of The Terms and Conditions; Updates
You may print a copy of the Terms using the print button or feature in your browser. We suggest retaining a copy for your future reference. You should be aware, however, that we may revise the Terms at any time, and by your continued use of the Site you agree to be bound by future revisions. It is your responsibility to periodically visit the "Terms and Conditions" link at the bottom of our home page to review the most current version of the Terms. You may use your browser to print copies of any updated Terms.
New York & Company, Fashion to Figure, RTW Retailwinds, Uncommon Sense, and other symbols and names used on the Site are the trademarks and service marks of Company and its affiliates. All other trademarks, service marks, icons, and logos used in this Site are the trademarks, service marks or logos of their respective owners.
SOME JURISDICTIONS MAY LIMIT OR NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES. TO THE EXTENT THAT APPLICABLE LOCAL LAW EXPRESSLY PROHIBITS DISCLAIMER OF SUCH WARRANTIES, THOSE EXCLUSIONS MAY NOT APPLY TO YOU.
THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. BY USING THE SITE YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND HYPERLINKED WEBSITES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY AND ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED IN THE TERMS AND CONDITIONS, COMPANY, ITS AFFILIATES AND SUBSIDIARIES AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Limitation of Liability
COMPANY AND ITS AFFILIATES, VENDORS, LICENSORS, AND OTHER THIRD PARTIES MENTIONED ON THE SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES AND PRODUCTS, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY HYPERLINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR HYPERLINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, 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 TO YOU OF COMPANY, ITS AFFILIATES AND SUBSIDIARIES AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THE TERMS AND CONDITIONS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID COMPANY IN CONNECTION WITH THE TRANSACTION(S) THAT ARE THE BASIS OF THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS THE PROVISION TO BE UNCONSCIONABLE.
Accuracy and Integrity of Information
Although we attempt to ensure the integrity of the Site and accuracy of the Content, it is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. Company makes no guarantees whatsoever as to the correctness or accuracy of the Site and Content. We reserve the right to correct inaccuracies or any omissions and update information at any time. In the event that you become aware of an inaccuracy, please notify us so that we can correct the inaccuracy. Information contained on the Site may be changed or updated without notice. In addition, the availability of products and other items on the Site may change at any time, without notice. The pricing for products and other items in your shopping cart may also change from the time you originally placed the items in your cart. Therefore, always review pricing for your products at the time of checkout. Please note that the colors of items and products may depend on your monitor and may not be correctly displayed.
Telephone Communications and Agreement to be Contacted
A. Call Recording and Monitoring. You acknowledge that telephone calls to or from Company, together with its agents, independent contractors, and affiliates, may be monitored and recorded and you agree to such monitoring and recording.
B. Your Provision of Telephone Numbers and Other Contact Information. . You verify that any contact information provided to Company, its agents, or affiliates, including, but not limited to, your name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or terminate your account access at any time. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by visiting My Account and logging in with your email address and password.
C. Your Consent to Receive Automated Calls/Texts. You acknowledge that by voluntarily providing your telephone number(s) to Company, its agents, service providers, and affiliates, you expressly agree to receive prerecorded voice messages, and/or autodialed calls and text messages from us, our agents, and affiliates related to promotions, your account, registration and/or your relationship with us. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You understand that you may receive automated calls or text messages to any telephone number you provide at any time. You also agree that Company may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. You agree to receive automated calls and text messages from us, our agents and affiliates even if you cancel your account or terminate your relationship with us, except if you opt-out (see below). You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
D. Opt-Out Instructions. Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive or shortcode 697895. You may also text HELP for help. You acknowledge and agree to accept a final text message confirming your opt-out. To opt-out of automated voice calls (not text messages), you must (i) provide us with written notice revoking your consent to receiving automated calls; (ii) in that written notice, you must include your full name, mailing address, account number, and the specific phone number(s) for which you wish to stop automated calls; and (iii) send this written notice to RTW Retailwinds, Inc., 330 West 34th Street, New York, NY 10001 Attn: Customer Service. It is your sole responsibility to notify us if you no longer want to receive automated calls or text messages. You waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls or text messages, we reserve the right to make non-automated calls to you.
E. Fees and Charges. There is no fee to receive automated telephone calls or text messages from Company, our agents, affiliates, and independent contractors. However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Company, our agents and affiliates are not responsible for such charges.
F. Unauthorized Use of Your Telephone Device. You must notify Company immediately of any breach of security or unauthorized use of your telephone device. Although Company, our agents, affiliates, and independent contractors will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for the losses of Company, our agents, affiliates or others due to such unauthorized use.
G. General. You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive calls and text messages. Text messaging may only be available to customers of select carriers with compatible handsets. Your obligations under this Section will survive termination of the Terms.
Links or Pointers to Other Sites
Company makes no representations whatsoever about any other website that you may access through this Site. When you access a non-Company site, please understand that it is independent from Company, and that Company has no control over the content on that website. In addition, a hyperlink to a non-Company website does not mean that Company endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.
Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”). You and Company agree that we intend that this Section satisfies the “writing” requirement of the FAA. This Section can only be amended by mutual agreement.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, the Content, your Communications, the Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Company’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section (D), 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 contact information exists or if such information is not current, then we have no obligation under this Section (A). To provide us notice of an arbitration demand, send the demand to our registered agent or to RTW Retailwinds, Inc. 330 West 34th Street, New York, NY 10001 Attn: Legal Department. For a period of sixty (60) days from the date of receipt of notice from the other party, Company and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section (A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND COMPANY MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THE TERMS. The FAA shall govern the arbitrability of all disputes between Company and you regarding the Terms (and any Additional Terms) and the Site, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.
The arbitration will be conducted by American Arbitration Association (“AAA”) under its then current Commercial Dispute Rules by a single arbitrator experienced in commercial disputes. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. However, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith: [a] we will reimburse those fees for claims totaling less than $5,000, and [b] in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation, regardless of the outcome of the arbitration. Likewise, Company will not seek attorneys' fees and costs in arbitration unless permitted by law and the arbitrator determines the claim(s) asserted against Company are frivolous or brought in bad faith. This arbitration provision shall survive termination of the Terms or the Site.
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 A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION (A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief. The foregoing provisions of this Section will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your Communications and/or Company’s intellectual property rights (including such Company may claim that may be in dispute), Company’s operations, and/or Company’s products or services.
E. No Class Action Matters. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section (B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section (F). Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
F. Federal and State Courts in New York, New York. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in New York, New York. Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.
G. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction. Notwithstanding any other provision in the Terms to the contrary, to the extent Company makes a material change to this dispute resolution provision, such change will not apply to any dispute that you provided Company notice of prior to the change in the dispute resolution provision.
Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, COMMUNICATIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY (INCLUDING YOUR LICENSED COMMUNICATIONS) OR A LICENSOR OF COMPANY.
A. Company’s Consent or Approval. As to any provision in the Terms or any Additional Terms that grants Company a right of consent or approval, or permits Company to exercise a right in its “sole discretion,” Company may exercise that right in its sole and absolute discretion. No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.
B. Applicable Law. The Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.
C. Indemnity. You agree to, and you hereby, defend, indemnify, and hold Company 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 Company, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your Communications; (ii) your use of the Site and your activities in connection with the Site; (iii) your breach or alleged breach of the Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) failure to update your contact information (including your telephone number), your voluntary provision of a telephone number that is not your own, and/or from your violation of any federal, state, or local law, regulation, or ordinance; (viii) Company’s use of the information that you submit to us (including your Communications); and (ix) any claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify Company of any changes in your contact information, including telephone number (all of the foregoing, "Claims and Losses"). You will cooperate as fully required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, Company retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company reserves 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 Company.
D. Operation of Site; Availability of Products and Services; International Issues. Company controls and operates the Site from its offices in the U.S.A., and Company makes no representation that the Site is appropriate or available for use beyond the U.S.A., Canada, and Mexico. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available only in certain countries (or parts of certain countries) and are not available worldwide. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service, or other feature described or available on the Site 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. WITH RESPECT TO THESE TERMS, YOU AND WE DISCLAIM ANY APPLICATION OF, AND EXPRESSLY AGREE THAT THE TERMS WILL NOT BE GOVERNED BY, THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
E. Severability; Interpretation. . If any provision of the Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from the Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of the Terms or the Additional Terms (which will remain in full force and effect).
F. Investigations; Cooperation with Law Enforcement; Termination; Survival. Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of the Terms and any Additional Terms, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of the Terms and any Additional Terms, and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under the Terms or any Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Company, all rights granted to you under the Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site.
G. Assignment. Company may assign its rights and obligations under the Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. The Terms and any Additional Terms may not be assigned by you to another party, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
H. No Waiver. Except as expressly set forth in the Terms or any Additional Terms, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of the Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
I. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Site and you will be responsible for all charges related to them.
Except as provided below, the Terms constitute the entire agreement between Company and you pertaining to the subject matter hereof. In its sole discretion, Company may from time to time revise the Terms and post the updated Terms on the Site without prior notice. You should, therefore, periodically visit this page to review the current Terms, so you are aware of any such revisions to which you are bound. Certain provisions of the Terms may be superseded by expressly designated legal notices or terms located on particular pages within this Site.