Terms of Service Old 2
Salt & Snow, Inc. Terms of Service
Thank you for choosing Salt & Snow, Inc. (“Company”) for your business. The Company provides e-commerce services (“Services”) to vendors (“Vendors”) through an online marketplace where Vendors may sell their fashion-forward, high-performance, premium sports apparel (“Vendor Products”) and provides customers (“Customers”) with an online marketplace of curated Vendor Products for sale, pursuant to the terms of Annexes 1-2 attached hereto.
These Terms of Service and the Annexes 1-2 attached hereto (“Agreement”) apply to: (1) any and all visitors (“Visitors”) to our website located at www.saltandsnow.com (“Website”); (2) to those who purchase of Vendor Products on our Website (“Customers”); and (3) to Vendors who sell Vendor Products on our Shopify app (“Vendors”). Visitors, Customers, and Vendors and any agents or employees of the same, are herein collectively referred to as “you” in this Terms of Service. For reference, Annex 1 is the Vendor Agreement that supplements the executed Master Services Agreement between a Vendor and the Company, and Annex 2 is the Customer Agreement between the Company and Customers who purchase Vendor Products from our Website.
YOU HEREIN REPRESENT THAT YOU ARE AT LEAST 16 YEARS OF AGE OR OLDER.
IF YOU OBJECT TO ANYTHING IN THESE TERMS OF SERVICE AND THE ANNEXES 1-2 ATTACHED HERETO, YOU ARE NOT PERMITTED TO USE THE SERVICES OF THE COMPANY, WEBSITE, OR SHOPIFY APP. If you accept these Terms of Service and use the Services on behalf of a company, organization, or other legal entity, you represent and warrant to the Company that you have full power and authority to do so.
Effective Date. This Agreement is effective (“Effective Date”) on the date you first access or use the Services and/or the Website, whichever is earlier.
- For Vendors, as that term is defined in Annex 1 attached hereto, the attached Vendor Agreement at Annex 1 is effective on the first date you access our Shopify app to create an account or the first date that you sign up to be a Vendor to Salt & Snow, Inc. through the executed Master Services Agreement, whichever is earlier.
- For Customers, as that term is defined in Annex 2 attached hereto, the attached Customer Agreement at Annex 2 is effective on the first date you access our Website or the first date that you purchase a Vendor Product on the Website belonging to Salt & Snow, Inc., whichever is earlier.
- For Visitors, as that term is defined above, this Agreement is effective as of the first date you visit the Website.
Customer Fees. Upon notice to you as a Customer, the Company may increase any fees specified in connection with its Services or the sale of Vendor Products on its Website. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement.
You authorize us and Shopify to process payment(s) for the Vendor Products, using the payment information you have supplied. You agree to provide the Company and/or Shopify with accurate and complete information about you and/or your business; and you authorize the Company to share it and any transaction information related to your use of the Vendor Products and/or Website with: (1) Vendors of the Vendor Products you purchase, and (2) Shopify for the purpose of fulfilling orders and processing payment(s).
If you believe a payment has been processed in error, you must provide written notice to the Company within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by the Company within such thirty (30) day period, the payment will be deemed final and valid.
The Company is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent or otherwise invalid. By using the Services, you hereby release the Company from any liability arising from fraudulent actions. You will also use best efforts to promptly notify the Company of any fraudulent actions which may affect the Services. The Company reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, fraudulent actions.
While the Company takes what it believes to be reasonable efforts to ensure secure transmission of your information to Shopify that assesses and processes payment(s), the Company is not responsible for any fees or charges assessed by third party service providers, or any errors in the processing of payment(s) by third party service providers, including any errors that result from third-party negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information. Your sole recourse is with Shopify which processed the payment(s).
Creation of an Account
We may verify your provided information, as required for your use of and access to the Services. You agree to maintain your Account solely for your own use. You agree that you will not allow another person to use your Account. We reserve the right to suspend or terminate the Account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
You are solely and entirely responsible for maintaining the confidentiality of your Account, and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account, including any charges incurred relating to the Services.
The Company is not liable for any harm caused by or related to the theft of your Account, your disclosure of your Account, or your authorization to allow another person to access or use the Services using your Account. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Services and/or the Website cannot be guaranteed in the event of breach.
You represent that you own and are entitled to disclose your Third Party Account login information to the Company and/or grant the Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account. The Company will not pay any fees or be subject to any usage limitations imposed by such third party service providers.
By granting the Company access to any Third Party Accounts, you understand that (i) the Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Services via your Account, including without limitation any friend lists, and (ii) the Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your Account with the Third Party Account. Please note that if a Third Party Account or associated service becomes unavailable or the Company's access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Services.
Depending on the Third Party Accounts you choose to link with the Website, and subject to the privacy settings that you have set in the Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your Account on the Website. Depending on your privacy settings, the Company may access your contacts associated with a Third Party Account, solely for the purposes of identifying and informing you of those contacts who have also registered to use the Services and/or Website, unless you expressly tell us not to do so in writing.
Finally, you will have the ability to disable the connection between your Account and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. The Company makes no effort to review Simple Notification Service push notification content (“SNS Content”) by any Third Party Accounts for any purpose, including but not limited to, for accuracy, legality or non-infringement, and the Company is not responsible for any SNS Content by Third Party Accounts.
However, we will not be liable to you for compensation, reimbursement, or damages in connection with your use of our Services, or in connection with any termination or suspension of our Services. Any termination of these Terms of Service does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us, as provided in these Terms of Service and Annexes thereto, and, if you are a Vendor, the executed Master Services Agreement between you and the Company.
Subscriptions. The Company may provide its Services to Customers on a subscription basis ("Subscription(s)"). You will be billed in advance on a recurring and periodic basis ("Billing Cycle"). Billing cycles are set either on a monthly or annual basis, depending on the type of subscription plan you select when purchasing a Subscription.
At the end of each Billing Cycle, your Subscription will automatically renew under the exact same conditions unless you cancel it or Salt & Snow, Inc. cancels it. You may cancel your Subscription renewal either through your online account management page or by contacting the Salt & Snow, Inc. customer support team at email@example.com.
A valid payment method, including credit card, is required to process the payment for your Subscription on Shopify. You shall provide Salt & Snow, Inc. with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize Salt & Snow, Inc. to charge all Subscription fees incurred through your account to any such payment instruments.
Should automatic billing fail to occur for any reason, Salt & Snow, Inc. will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
Except when required by law, paid Subscription fees are non-refundable.
Company Communications to You
Links to this Website. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website and/or Services, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with the Company or cause any other confusion, and (c) the links and the content on your website do not portray the Company or its products or Services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content 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 the Company. The Company reserves the right to suspend or prohibit linking to the Website and/or Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
Intellectual Property of the Company
In addition, any trademarks, service marks and logos associated with a Third Party Offering may be the property of a Vendor, business partner or affiliate, or any other third party provider, and you should consult with their trademark guidelines before using any of their marks.
Any information and data that you submit to the Website or in connection with the Services must not violate the intellectual property rights of third parties.
You are solely responsible for resolving disputes regarding ownership or access to your data, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that the Company has no obligation whatsoever to resolve or intervene in such disputes.
Your Communications with the Company
No Submission of Unsolicited Ideas and/or Materials. In your communications with the Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, "Unsolicited Ideas and Materials"). Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed “User Content” and licensed to us as set forth below. In addition, the Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. The Company’s receipt of your Unsolicited Ideas and Materials is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
You agree not to post on our Website any content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User content that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy.
The Company reserves the right, but is not obligated, to reject and/or remove any User content on the blog/public forum that the Company believes, in its sole discretion, violates these provisions. We also reserve the right to block or remove any content we deem inappropriate, obscene, lewd, lascivious, filthy, violent, harassing, defamatory, libelous, tortious, illegal, threatening, or otherwise objectionable, regardless of whether it was intended to be private or public. Since we do not review all content on our Website, we cannot guarantee that we will be able to take protective measures in the event that any User posts content that violates the terms of this provision. However, when we become aware of content that we consider violates this provision (i.e., is offensive or could compromise the privacy of your personal or confidential information or that of another person), we will make a good-faith, reasonable effort to block or remove such content.
The Company takes no responsibility and assumes no liability for any User content that you or any other User or third party posts or sends over the Website or mobile app, or any action you take in reliance on any User content posted by another User. You shall be solely responsible for your User content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User content.
Furthermore, you understand and agree that you may be exposed to other people’s User content that may be inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that the Company shall not be liable for any damages you allege to incur as a result of exposure to such User content.
You may self-edit and/or remove the content you posted on our Website and/or mobile app by logging into your account. Or, to request removal of any content that you believe violates this provision or that you previously posted on our blog/community forum, please contact us at firstname.lastname@example.org. In some cases, we may not be able to remove your content, especially if it was already re-posted by another User. If this is the case, we will let you know if we are unable to do so and why in response to your request.
DMCA Notice. The Company 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 Service, 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 electronic or physical signature.
The Company will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses set forth in the “Notice” section of this Agreement.
It is often difficult to determine if your copyright has been infringed. The Company may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and the Company 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 the Company's other rights, the Company may, in appropriate circumstances, terminate a repeat infringer's access to the Services, Website, and/or any other website owned or operated by the Company.
Counter-Notification. If access on the Website to a work that you submitted to the Company 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 District of Nevada), 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 electronic or physical 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 than ten (10) and not more than fourteen (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 Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR THIS WEBSITE.
THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES AND/OR THIS WEBSITE WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “COMPANY PARTIES”).
You agree to indemnify, defend, and hold harmless the Company from and against any and all third party claims alleged or asserted against any of the Company, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach of any provisions of these Terms; (b) any actual or alleged violation by you, an affiliate, or end user of any law or the intellectual property, privacy or other rights of the Company or a third party; (c) any dispute between you and another party regarding ownership of or access to your data or Personal Information submitted to the Company via its Website and the actions or inactions of any third party to whom you grant permissions to use your Account or access our website, app, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, or any of the Services on your behalf.
THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY THE COMPANY. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH THE COMPANY AND THE COMPANY PARTIES.
IN NO EVENT WILL THE COMPANY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE COMPANY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS RELATED TO OR ARISING FROM USE OF THE SERVICES. YOU HEREBY RELEASE AND FOREVER DISCHARGE THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER USER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF SERVICES OR OTHERWISE.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Dispute Resolution for Vendors, Customers, and Users
Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Before filing a claim against the Company, you agree to try to resolve the Dispute informally by contacting email@example.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or the Company may bring a formal proceeding.
We Both Agree to Arbitrate. You and the Company agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting firstname.lastname@example.org within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement.
Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in New York, New York, or any other location we agree to.
Arbitration Fees. The AAA rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate. Either you or the Company may assert claims, if they qualify, in small claims court in New York, New York or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions. You may only resolve Disputes with the Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.
Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and the Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of New York, New York. Both you and the Company consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
HIPAA. Health Insurance Portability and Accountability Act (“HIPAA”) imposes rules to protect certain personal health information. You should not share any protected health information, or any information that relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual. The Services and this Website are not intended to be used to communicate protected health information, nor comply with HIPAA. If you do share any protected health information, you do so at your own risk.
Choice of Law. These Terms of Service and the relationship between you and the Company shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.
Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company.
Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions with the Company. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
These terms of the Vendor Agreement herein supplement the terms of Vendor’s executed Master Services Agreement with the Company, which is fully incorporated by reference herein, and to the extent there is a conflict, the terms of the executed Master Services Agreement shall govern.
1. GRANT OF RIGHTS
a) ln consideration of payment by the Company to Vendor of $20 (“Licensing Fee”) per year or other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Vendor hereby grants to Company a non-exclusive, revocable, non-transferable license (“Licensed Rights”) to use the images, visual renderings, and/or photographs associated with Vendor Products, as that term is defined in the Master Services Agreement between Vendor and Company as well as in the Terms of Service (“Photographs”) in the format in which they are delivered by Vendor solely for the Purpose and during the Term stated in the Master Services Agreement, provided that (i) Company has complied with all its obligations set out in the executed Master Services Agreement; and (ii) the Company makes the Vendor Products available for sale on Website, as that term is defined in the Terms of Service, and does not use any other photographs of Vendor Products on the Website other than the Photographs (the “Licensed Rights").
d) Vendor shall provide any description or other content related to or in any way connected with the Vendor Products shown in the Photographs, as Company requests.
2. LICENSE FEE AND PAYMENT
a) Company shall be entitled to add the Licensing Fee to the amount due to Vendor for the sale of Vendor’s Products on the Company Website.
a) Except for the express warranties set forth herein, Vendor’s license to Salt+ Snow of Photographs is on an ’as is' basis, and Vendor makes no other implied warranties or representations in respect of the Photographs. Vendor hereby disclaims and excludes all representations and warranties (including the implied warranty of merchantability and fitness for a particular purpose). Notwithstanding the foregoing, Vendor hereby represents and warrants that none of the Photographs shall infringe on the intellectual property rights of any third party. To the extent that Photographs provided by Vendor do in fact infringe on the intellectual property rights of other(s), Vendor shall be liable in full to Company for any and all incurred damages resulting from the same.
b) Company hereby warrants, undertakes and represents that: i) it shall exercise the Licensed Rights solely in accordance with this Agreement and in a professional and tasteful manner; (ii) it shall not resell, sublicense unless expressly permitted in this Agreement, or assign the Photographs or any Licensed Rights to any third party; (iii) it shall not exercise the Licensed Rights in any way that renders the Photographs obscene, defamatory or in breach of the privacy or any other rights (including Intellectual Property Rights) of a third party or of any law in the Territory or that would damage or tarnish the reputation or goodwill associated with Vendor (including its group companies) or its Intellectual Property Rights; and (iv) it shall secure all permissions and clearances as are necessary to enable it to exercise the Licensed Rights.
4. TERM AND TERMINATION
a) This Agreement shall begin on the Effective Date of the executed Master Services Agreement.
b) Vendor may terminate this Agreement (a) on 30 business days' written notice at any time; (b) if the Company materially breaches this Agreement and the same is not cured within thirty (30) days after receipt of written notice from Vendor specifying such default; provided, however, if the default involves print or other material that cannot be retracted, the Company shall, nevertheless, be deemed to have cured the default if, within such thirty (30) day period, the Company corrects the defaulting behavior in print and other materials going forward; or (c) immediately and without notice if: (i) the executed Master Services Agreement terminates for whatever reason; (ii) the Company enters into administration, provisional liquidation or any composition or arrangement with its creditors, is however wound up, has a receiver appointed to any of its assets or ceases to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction or (iii) the Company undergoes a change of control.
5. INTELLECTUAL PROPERTY RIGHTS
a) For the purposes of this Agreement, "Intellectual Property Rights" shall mean all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade, dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, databases rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extension of, such rights and all similar or equivalent rights or forms of protection in any part of the world, and all other similar proprietary rights in any jurisdiction and all applications, renewals, reversions and extensions in respect of any rights as above so far as is or may become possible.
b) As between Vendor and Company, Vendor owns and shall retain all right, title and interest, including Intellectual Property Rights, in the Photographs. Except as provided herein, nothing in this Agreement shall be construed as transferring or otherwise licensing either party's (or any third party's) Intellectual Property Rights to the other party.
c) Company agrees at its own reasonable cost and expense to assist Vendor on request in every proper way to secure, enforce, obtain, apply for and maintain Vendor’s Intellectual Property Rights in the Photographs throughout the world, including executing and delivering all declarations, affidavits, waivers, assignment and other documents; provided, however, in n o event shall this paragraph require Company to incur legal or other related expenses in defending or enforcing the Intellectual Property on behalf of Vendor.
d) Company shall not attempt to register, or assist a third party with the registration of, any of Vendor's Intellectual Property Rights nor shall Company assert ownership of Vendor's Intellectual Property Rights nor attempt to register any marks that are the same as or confusingly similar to Vendor's Intellectual Property Rights.
e) Company shall provide Vendor with prompt written notice of any known or suspected infringement of the Intellectual Property Rights in the Photographs. Vendor shall have the exclusive right to determine whichever action (including without limitation sole conduct of any claim) to take with respect to such infringement.
f) Company shall comply with Vendor's reasonable instructions from time to time regarding the Photographs. Company's use of the Photographs shall be consistent with Vendor's marketing materials of like nature, and in accordance with any branding or other guidelines supplied by Vendor from time to time.
g) To the extent reasonably practicable, Company shall credit Vendor when using the Photographs as permitted in this Agreement. Any such credit will appear in the fine print with other credits and disclosures, where applicable. In no event, however, shall a failure to include the Credit with the use of a Photograph be a breach hereunder.
h) Vendor shall at all times have the right to inspect Company's use of the Photographs.
All proprietary rights and goodwill associated with Company's use of the Photographs shall inure to the benefit of Vendor.
6. COMPLIANCE WITH LAWS
a) Company shall, at its own expense, comply with all applicable Iaws, regulations, conditions, registrations, permits and approvals relating to its activities under this Agreement, as they may change from time to time.
a) Vendor will defend Company and indemnify Company against any and all costs, damages and expenses (including reasonable legal fees) arising out of any third-party claim that the Photographs provided by Vendor to Company under this Agreement infringe any patent, copyright, trade secret or trademark; any third party intellectual property right; or any claim arising out of or relating to any breach by Vendor of any representation or warranty made by Vendor (“Claim”); provided that:
- Company promptly notifies Vendor in writing no later than five (5) business days after Company’s receipt of notification of a potential Claim;
- Vendor shall have an opportunity to assume sole control of the defense of such Claim and all related settlement negotiations; and
- Company provides Vendor, at Vendor’s request and expense, with the assistance, information and authority necessary to perform Vendor’s obligations under this Section.
Company reserves the right to retain counsel at its own expense to participate in the defense and settlement of any such Claim. In the event Vendor does not defend a Claim, Company shall have the right to defend or settle the claim at Vendor’s expense and Vendor will reimburse Company for all expenses incurred by Company.
Vendor will not settle any claim unless the settlement agreement includes an unconditional release of the Company with respect to the claim. Vendor further agrees that any such settlement will not materially impair Company’s exercise of the rights granted to Company under this Agreement.
If, due to a Claim, (i) the Vendor’s deliverables are held by a court of competent jurisdiction to be or are believed by Vendor to infringe, or (ii) Company receives a valid court order enjoining Company from using the Vendor’s deliverables, Vendor shall at its expense, (a) replace or modify the deliverables to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; or (b) obtain for Company a license to continue using the deliverables.
- Advertisements. We advertise Vendor Products on our Website. Descriptions of the Vendor Products advertised on the Website are provided by the Vendors. Company does not investigate or vet Vendors’ marketing practices related to Vendor Products. Company is not responsible for any claims associated with the description of the Vendor Products. That responsibility and your recourse as a Customer lies solely with the Vendor.
- Licensures. A Vendor may advertise goods, services or experiences on the Website, or with respect to Products, supply products to Company, that require Vendor to have an up-to-date regulatory authorization, license, or certification. Company does not verify, validate, or collect evidence of any regulatory authorization, license or certification from any Vendor. You should make whatever investigation you deem necessary or appropriate before purchasing any Vendor Product to determine whether: (i) Vendor’s representations about Vendor and its Vendor Products are truthful; or (ii) the Vendor Product is of the care and quality you require. Vendor is solely responsible for the care and quality of the goods and services being provided or the care and quality of the Vendor Products.
- Processing a Sale. Company may, in its sole discretion, verify a user’s identity prior to processing a purchase. Company may also refuse to process a purchase, may cancel a purchase, or may limit sales to particular addresses, as reasonably deemed necessary, to comply with applicable law or to respond to a case of misrepresentation, fraud or known or potential violations of the law or this Customer Agreement. If a Vendor Product becomes unavailable between ordering and processing, the Company will either cancel or not process the order and will notify you by email. Company does not guarantee that it offers the best available rates or prices and does not guarantee against pricing errors by itself or Vendor for Vendor Products. Company reserves the right, in its sole discretion, to not process or to cancel any orders for Vendor Products placed, including, without limitation, if the price was incorrectly posted on the Website. If this occurs, the Company will attempt to notify you by email. In addition, the Company reserves the right, in its sole discretion, to correct any error in the stated retail price of the Vendor Product.
- Returns, Refunds, and Exchanges.
You purchase the Vendor Product from the Company. Company will manage any Customer Service and Support issues that arise from this purchase.
Returns. Company will coordinate with the Vendor that supplied the Vendor Product so as to allow you to return the Vendor Product you purchased on our Website directly to the Vendor for a refund from Company. Valid reasons for returns include: (a) the Vendor Product was used or worn by the customer; (b) the Vendor Product’s tag or label was removed by the customer; (c) the Vendor Product was sold “final sale” or otherwise labeled as not returnable; (d) the Vendor Product was returned to the incorrect Vendor; or (e) the Vendor Product was not defective or damaged.
Exchanges. You herein agree that should you as a Customer desire to exchange, you are welcome to return the Vendor Product and repurchase from our Website.
Refunds. Refunds shall be provided at Company’s sole discretion.
- Shipping and Handling of Vendor Products. You may purchase Vendor Products on the Website, and Vendors will be solely responsible for delivery, shipping, and/or handling of the Vendor Products. Terms and conditions regarding shipping, delivery, and returns will vary by Vendor. Charges for delivery and applicable sales taxes will be added at checkout. Once you click the “Buy” button, the Company will notify the Vendor. Your purchase is not complete until you receive an email from the Company confirming whether or not the Vendor has accepted your order. Vendor is solely responsible for all Vendor Products purchased through the Website. Any claims for mishandling of the delivery of Vendor Products must be solely resolved through the Vendor; the Vendor is solely responsible and liable for any claims of this kind. Company takes no responsibility for these types of claims. The following terms also apply:
a. Shipment and tracking options and applicable charges will vary.
b. Shipment may be limited to specific geographic locations.
c. Shipping and delivery estimates are only estimates; they are not guaranteed
times and should not be relied upon as such.
d. When Products are delivered to the delivery address provided at checkout, risk of loss and legal title to those Products will transfer from the Vendor to the Customer (i.e., the Products will become the Customer’s personal property).
e. It is your responsibility to ascertain and obey all applicable local, state, provincial,
territorial, federal, and international laws (including, without limitation, minimum age
requirements) relating to the receipt, possession, use, and sale of any Product.
- Pricing, Products, and Accuracy. The following terms and conditions apply:
a. Pricing relating to certain Vendor Products on the Website may change at any
b. Products delivered or shipped to you from the Vendor are subject to applicable
taxes, customs, and duties depending on your country of residence and will be added at checkout.
c. Advertised prices may include shipping and delivery charges. If delivery charges
are not included in the advertised price, such costs will be calculated and added at checkout.
d. Occasionally there may be an error or omission related to the pricing of
advertised Vendor Products. We will use reasonable efforts to correct any pricing
errors or omissions as soon as practicable after learning of them. We reserve the right to change, modify, substitute, suspend, or remove without notice any pricing information related to Products for sale. If there was a pricing error or omission and you have already purchased a Product: (i) if the actual price of the Vendor Product is less than the stated price at the time of purchase, we will charge you the lower price; or (ii) if the actual price of the Vendor Product is higher than the stated price, we will contact you and allow you the option to pay the correct (higher) price or cancel your order and receive a refund.
e. Unless stated otherwise in the offer's deal terms, all Products are sold AS IS.
f. While we work to ensure that the Vendor Product description and
information on the Website is correct, we cannot guarantee that Vendor Product descriptions are accurate or complete. All information is provided for informational purposes only and we encourage you to read all information presented on labels, warnings and directions that accompany the Vendor Products before use. If a Vendor Product is not as described, your sole remedy is to return it to the Vendor in unused condition.
g. We have taken reasonable steps to display as accurately as possible the colors and other details of Vendor Products we sell. However, the colors and details you see on the Website will depend on the equipment you use to view the Website. We cannot guarantee that the display of any color or other details on your television, mobile device, computer or other device will exactly reflect the color or details of the actual Products.
h. Certain Vendor Products you purchase through the Website may be subject to export control laws and regulations if shipped outside the United States. It is your responsibility to ensure that any export or re-export complies with all applicable restrictions and regulations, including, without limitation, the Export Administration Regulations (“EAR”) administered by the Department of Commerce, the International Traffic in Arms Regulations administered by the Department of State, and all sanctions programs administered by the Treasury Department’s Office of Foreign Assets Control (“OFAC”).
i. You further agree that no Vendor Products sold through this Website to you in the United States will be exported or re-exported to Cuba, Iran, North Korea, Sudan, Syria, or any country subject to a comprehensive embargo administered by the OFAC, and you agree that no Products sold through this Website will be exported or re-exported to any person or entity on the Specially Designated Nationals List administered by OFAC, the Entity List or Denied Persons List of the EAR, or any similar list of prohibited parties administered by the United States government.