Date Revised and Posted: October 2, 2000
1. Acknowledgement of Agreement Enforceability; No Construction Against the Drafter. You hereby acknowledge and agree that you have freely and voluntarily entered into this Agreement, and have read and understood each and every provision, including, but not limited to, Your rights, obligations, and applicable terms and conditions as set forth herein. You acknowledge and agree that any interpretation of this Agreement shall not be construed against ForeverJewelers.com by virtue of its having drafted the terms and conditions hereunder.
2. Disclaimer of Warranty. YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE AND THE CONTENTS THEREIN ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND FOREVERJEWELERS.COM DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED (THE “DISCLAIMED STATEMENTS”), REGARDING THE WEBSITE OR ITS CONTENTS, INCLUDING, WITHOUT LIMITATION, ANY DISCLAIMED STATEMENTS: (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (II) ARISING FROM COURSE OF DEALING, COURSE OF USAGE, OR COURSE OF PERFORMANCE; OR (III) OF TIMELINESS, ACCURACY, RELIABILITY OR CONTENT OF THE WEBSITE AND ANY INFORMATION PROVIDED THROUGH THE WEBSITE UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FOREVERJEWELERS.COM DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF TRANSACTIONS EXECUTED ON THE website OR THE RESULTS TO BE OBTAINED FROM THE USE OF THE INFORMATION ON THE website, AND INFORMATION ON THE website IS NOT INTENDED TO PROVIDE ADVICE, AND SHOULD NOT BE RELIED UPON IN THAT REGARD.
3. Limitation of Liability.
· YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL ForeverJewelers.com BE LIABLE FOR direct, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, punitive, OR EXEMPLARY DAMAGES (COLLECTIVELY, THE “damages”), arising out of YOUR use or inability to use the website, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS or LOST SAVINGS OR GOODWILL OR DATA, THE PROVISION OF PERSONALLY IDENTIFIABLE INFORMATION, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, DENIAL OF SERVICE ATTACK, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, OR THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF YOUR INFORMATION, EQUIPMENT, OR PROPERTY, EVEN IF FOREVERJEWELERS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT FOREVERJEWELERS.COM IS NOT LIABLE FOR THE CONDUCT OF AND INFORMATION SUPPLIED BY OTHER WEBSITE USERS OR THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT) AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
· THE FOREGOING SHALL APPLY REGARDLESS OF: (I) THE NEGLIGENCE OF ForeverJewelers.com; (II) ANY FAILURE OF AN ESSENTIAL PURPOSE; AND (III) WHETHER SUCH LIABILITY SOUNDS IN NEGLIGENCE, STRICT LIABILITY, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, ForeverJewelers.com’s LIABILITY IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL FOREVERJEWELERS.COM’s CUMULATIVE LIABILITY TO YOU EXCEED THE AMOUNTS YOU HAVE PAID FOREVERJEWELers.com in the transaction which is the subject of your claim.
· ForeverJewelers.com is NOT in any way responsible for any information, products, or services accessible through OTHER WEB SITES THAT LINK FROM the Website, AND FOREVERJEWELERS.COM SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER IN RELATION TO ANY OF THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY SEXUALLY EXPLICIT MATERIALS. ForeverJewelers.com neither endorses nor is responsible for the accuracy of any third party material(s), and you agree that ForeverJewelers.com is not responsible for any loss or damage caused by your use of, or reliance on, such material(s), NOR FOR ANY FAILURE TO ENFORCE ANY OF FOREVERJEWELERS.COM’S RIGHTS UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, AGAINST ANY WEBSITE USER OR THIRD PARTY.
· Binding Agreement. By using the Website, You agree to comply with all of the terms and conditions in this Agreement. The right to use the Website is personal to You and is not transferable to any other person or entity. You shall be solely responsible for protecting the confidentiality of Your password(s). You agree to accept full responsibility for the acts and omissions of any third party that accesses the Service, including, without limitation, any portion of the Service through use of your password as if such acts and omissions were Your own. You agree to notify ForeverJewelers.com immediately in the event that any third party gains or has the potential to gain access to Your password.
· Your Right to Use the Website. ForeverJewelers.com grants You a non-exclusive, non-transferable, non-sublicenseable, limited, and revocable right to access, use and display the Service on any computers or other electronic display devices of which You are a user, subject to all terms and conditions in the Agreement, including, without limitation, all terms and conditions governing passwords and access to secure areas of the Service as provided to You by ForeverJewelers.com from time to time, for which access You must first be granted the prior written consent of ForeverJewelers.com. You represent and warrant that You are at least eighteen (18) years of age.
· Changes to the Website. ForeverJewelers.com shall have the right at any time to change or discontinue any aspect or feature of the Website, including, but not limited to, content, hours of availability, and equipment needed for access or use.
5. Changed Terms. ForeverJewelers.com shall have the right at any time to change or modify the terms and conditions applicable to Your use of the Website, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the Website, or by electronic or conventional mail, or by any other means by which You obtain notice thereof. Any use of the Website by You after any of the aforementioned means of notice shall be deemed to constitute acceptance by You of such changes, modifications or additions to this Agreement.
6. Equipment. You shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Website and all charges related thereto.
7. Your Conduct.
· Lawful Purposes. You shall use the Website for lawful purposes only. You shall not post or transmit through the Website any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, libelous, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, contains injurious formulas, recipes, or instructions, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. Any conduct by You that in ForeverJewelers.com’s sole discretion restricts or inhibits any other Website user from using or enjoying the Website will not be permitted.
· ForeverJewelers.com Intellectual Property. The Website contains copyrighted material, trademarks and other proprietary information, which may include, but is not limited to, text, software, photos, video, graphics, music and sound. ForeverJewelers.com owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original, granted or assigned to ForeverJewelers.com. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, publicly distribute, publicly display, reproduce, publicly perform, or in any way exploit in any format whatsoever (including, without limitation, print and electronic formats) any of the Website content, in whole or in part without ForeverJewelers.com’s prior written authorization. You may download copyrighted material for Your personal use only. Except as otherwise expressly permitted under the United States copyright laws, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of ForeverJewelers.com and the applicable copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. You acknowledge that You do not acquire any ownership rights by downloading copyrighted material.
· Site Material. You shall not upload, post or otherwise make available on the Website any material protected by copyright, trademark or other proprietary right without the express written permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not so protected rests entirely with You. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, or other proprietary rights, or any other harm resulting from such a submission. Except as limited under applicable law, for all material submitted by You to the Website, You automatically grant, or warrant that the owner of such material has expressly granted, ForeverJewelers.com the royalty-free, perpetual, irrevocable, worldwide, fully-paid up right and license to use, reproduce, create derivative works, publicly distribute, publicly perform, publicly display, assume any sound recording rights or moral rights of attribution or integrity, transmit, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed (including, without limitation, print and electronic form, media and technology) for the full term of any copyright that may exist in such material. Except as limited under applicable law, You also permit any other Website user to access, view, store or reproduce the material for that Website user’s personal use.
· No Unauthorized Access and Unauthorized Activities on the Website. While the Website is publicly available, the Website is only publicly available for the authorized uses described in this Agreement and the ForeverJewelers.com Transaction Agreement. Access to the Website is not authorized for any activities that interfere or have the potential to interfere with ForeverJewelers.com’s possessory interest in the Website. Unauthorized activities, include, but are not limited to: any access and use of the Website for automated access, screen scraping, data acquisition and consolidation, automated offers, auction aggregations, software robots (including, without limitation, shopping bots), or recursive searching; using the Website in an attempt to break security, or so as to actually break security of any computer network (including, without limitation, the Website itself), or to access an account, message, or file which does not belong to You; using the Website for unauthorized relays through any third party systems; attempting, in any way, to interfere with or deny service (including, without limitation, the Website) to any user or any host on the Internet; using the Website for mail-bombing, which includes, without limitation, any instance where multiple messages are sent to a specific destination with the intent to render the recipient and/or the electronic system serving that recipient dysfunctional; using the Website to add or attempt to add addresses to any mailing list (Yours or a third party’s); attempting to cancel, supersede, or otherwise interfere with electronic mail; using the Website to engage in syn flood attacks, which are defined as overburdening a recipient computer system by sending a high volume of spurious data which effectively impedes or totally disables functionality of the recipient system(s), or any other methods of denial-of-service attacks; furnishing false data on Your sign-up form, contract, or online application, including, without limitation, providing fraudulent payment information; actively engaging in or authorizing making the Website or any portion thereof available as part of a “co-branded” or “private label” web site, web service, or Internet access service, or as part of a “channel” through a software or Internet service, or similar arrangements or relationships that offer or provide access to the Website from or through other web sites, web services, or Internet access services, or as part of any other web site when Framed (as defined below) and displayed as part of another web site or web service, and You shall not authorize any third party to make any of the Website available on any other web site by means of Framing (as used herein, “Frame” and “Framing” means the display of a web page (the “Framed Page”) within an HTML frame of a different web page (the “Framing Page”), where the Framed Page is not controlled by the party that publishes the Framing Page); using the Website for any unlawful purpose, in which case You acknowledge and agree that ForeverJewelers.com may fully cooperate with any law enforcement authorities in regards to such unlawful purposes; and any other activities that exceed the scope of ForeverJewelers.com’s permission to allow You to use this Website (the “Unauthorized Activities”). You acknowledge and agree that Your Unauthorized Activities constitute a substantial interference with ForeverJewelers.com’s possessory interest in the Website, even if such Unauthorized Activities alone do not proximately cause damage to ForeverJewelers.com, if such Unauthorized Activities would cause such damage in combination with other Unauthorized Activities engaged in by any third party or parties. Should You engage in any Unauthorized Activity, You acknowledge and agree that such Unauthorized Activity is: (a) a breach of this Agreement; and (b) a trespass to chattel.
8. Monitoring. ForeverJewelers.com shall have the right, but not the obligation, to monitor the content of the Website, to determine compliance with this Agreement and any operating rules established by ForeverJewelers.com and to satisfy any law, regulation, authorized government request, or trade association guideline. ForeverJewelers.com shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on the Website. You acknowledge and agree that any communication or material You post or transmit to the Website is, and will be treated as, non-confidential and non-proprietary. Without limiting the foregoing, ForeverJewelers.com shall have the right to remove any material that ForeverJewelers.com, in its sole discretion, finds to be in violation of the provisions hereof, may cause liability for ForeverJewelers.com, or is otherwise objectionable.
9. Indemnification. You shall indemnify and hold harmless ForeverJewelers.com from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments and expenses, as well as third party claims and causes of action, including, without limitation, attorneys’ fees, (collectively, the “Losses”) arising out of any breach by You of any of the terms and conditions of the Agreement, or any use by You of the Website or transmission by You through the Website, including, without limitation, unsolicited commercial electronic mail, system shut downs, retaliatory attacks or data flooding, or loss of peering arrangements. Except as prohibited by applicable law, ForeverJewelers.com may set-off the amount of any Losses against any sums accruing to You under any transaction between You and ForeverJewelers.com, including without limitation, any reimbursements under Your ForeverJewelers.com Transaction Agreement. Upon receipt of any third party claim, ForeverJewelers.com shall have the right to assume the sole defense thereof, at Your expense, by representatives chosen by ForeverJewelers.com. You shall provide ForeverJewelers.com with such assistance, without charge, as may be requested by ForeverJewelers.com in connection with any such defense, including, without limitation, providing ForeverJewelers.com with such information, documents, records and reasonable access to You, as ForeverJewelers.com shall deem necessary. In no event shall You settle any third party claim or waive any defense without ForeverJewelers.com’s prior written consent.
10. Termination. Either ForeverJewelers.com or You may terminate this Agreement at any time without cause. Without limiting the foregoing, ForeverJewelers.com shall have the right to immediately terminate Your access to the Website in the event of any conduct by You which ForeverJewelers.com, in its sole discretion, considers to be unacceptable, or in the event of any breach by You of this Agreement.
11. Trademarks. “ForeverJewelers.com” is a trademark of Schwartzberg, Inc. All rights reserved. All other trademarks appearing on the Website are the property of their respective owners. You gain no rights of any nature whatsoever in ForeverJewelers.com’s trademarks, service marks or trade names through Your use of the Website.
12. No Endorsement of Website Content. ForeverJewelers.com neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on or off the Website by anyone other than authorized ForeverJewelers.com employee spokespersons while acting in their official capacities. It is the responsibility of You to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Website or through a Website user. Advice of a professional, if appropriate, may be necessary for You regarding the evaluation of any specific information, opinion, advice or other content.
13. Copyright Infringement; Termination Policy. ForeverJewelers.com’s Copyright Agent for notice of claims of copyright infringement on or regarding the Website can be reached as follows
· Copyright Agent
Attn: John J. Priest
· Termination of Website Access. ForeverJewelers.com respects the rights of copyright holders and in this regard, ForeverJewelers.com has adopted and implemented this policy. Under this policy, ForeverJewelers.com has the right to terminate, if commercially practicable and reasonable, Website access in appropriate circumstances for employees, Website users and account holders, who infringe the rights of copyright holders, if any. If in ForeverJewelers.com’s sole judgment the infringer is an innocent infringer, then ForeverJewelers.com shall not terminate access unless such person has repeatedly infringed copyrighted material. If ForeverJewelers.com determines that the infringer negligently or intentionally engaged in the infringing activity, then ForeverJewelers.com reserves the right to immediately terminate that infringer’s Website access.
14. Unsolicited Commercial Electronic Mail. You may not use the Website or its facilities to send, relay, forward, bounce, reply, or otherwise route electronic messages to: (a) users of the Website; or (b) third parties who are not users of the Website without the prior written permission of ForeverJewelers.com. Permission will not be given to send, relay, forward, bounce, reply, or otherwise route unsolicited commercial email, and You may not use the Website in any way to send, relay, forward, bounce, reply, or otherwise route unsolicited commercial email to Website users or to third parties. Any message(s) You send to Website users must accurately identify the originating sender of the message(s). You acknowledge and agree that a message with a misleading, disguised, or otherwise false originating address will be deemed unsolicited commercial email.
15. PRIVACY. You shall safeguard and not release to any third parties any third party data which You may come into possession of or gain access to, and in doing so shall fully conform with the Federal Trade Commission fair information collection principles as well as all applicable laws, regulations and decisions of any governmental entity, including, but not limited to, Title V (Privacy) of the Gramm-Leach-Bliley Act, P. L. 106-102 [S. 900] (Nov. 12, 1999), as amended, and all regulations issued pursuant thereto (all of the aforementioned legal authority shall be referred to as “Privacy Requirements”). At any time and from time to time, You agree, without consideration, pursuant to ForeverJewelers.com’s request, to take such actions, make such disclosures, make such modifications, safeguard data, protect consumer privacy for personally identifiable information (including, without limitation, financial information), and to execute and deliver such documents as may be necessary to comply with all Privacy Requirements.
· Governing Law; Jurisdiction. The construction, interpretation and enforcement of this Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, applicable to contracts made entirely within and wholly performed in the State of New York, without regard to the choice or conflict of laws provisions thereto. The sole jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of New York, and the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens, except that ForeverJewelers.com may seek temporary injunctive relief in any venue of its choosing. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. You agree to accept service of any summons, complaint, or other process in connection with any litigation arising out of this Agreement (“Process Service”). Within thirty (30) days after Process Service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, You shall appear or answer such Process Service. Should You so served fail to appear or answer within such thirty (30) day period or such extended period, as the case may be, You shall be deemed in default and You shall not object to judgment being entered against You for the amount and remedies demanded pursuant to such Process Service.
· Cumulative Remedies; Waiver; Equitable Remedies. All remedies available to ForeverJewelers.com for Your breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. The failure of ForeverJewelers.com at any time to require performance by You of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by ForeverJewelers.com of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If You breach this Agreement, ForeverJewelers.com shall be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and You acknowledge and agree to not contest such application.
· Severability. If any provision or portion thereof of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed in all respects as if the invalid or unenforceable provision or portion thereof had been omitted and all other provisions and portions of provisions are fully enforceable, and in such case this Agreement may be modified, amended, and limited, reflecting the intentions of the parties, if and only if such changes are necessary to render the Agreement valid and enforceable.
· Independent Contractor. ForeverJewelers.com is acting in performance of this Agreement as an independent contractor. Neither You, Your employees, or Your agents, shall have the power or authority to bind or obligate ForeverJewelers.com.
· Limitation on Liability of Parents, Subsidiaries, Shareholders, Officers, Directors, Members, Employees and Agents. You shall not make any claim against the parents, subsidiaries, affiliates, members, shareholders, officers, directors, employees or agents of ForeverJewelers.com but instead shall look solely to the assets of ForeverJewelers.com for satisfaction of any liability of ForeverJewelers.com under this Agreement.
· Survival; Successors Bound. Sections 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15 and 16 shall survive any termination or expiration of this Agreement. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, trustees and administrators, as the case may be.
Entire Agreement; Amendments;
No Third Party Beneficiaries; Assignment. Except
for a ForeverJewelers.com Transaction Agreement, and the ForeverJewelers.com
and supersedes any other communications, advertisements or understandings with
respect to the subject matter hereunder. In the event that there is a conflict
between this Agreement and the ForeverJewelers.com Transaction Agreement, the
ForeverJewelers.com Transaction Agreement shall govern. In the event that there
this Agreement shall govern. This Agreement may be amended only by ForeverJewelers.com.
No third party is a beneficiary of this Agreement. This Agreement is not assignable
by You in whole or in part, without the prior written permission of ForeverJewelers.com.
Any such assignment or delegation shall be null and void.
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