THE COOKWARE COMPANY (USA), LLC
- Acceptance. User will be legally bound by this Agreement and should read it carefully. If User does not accept the Terms, User should not use the Site.
- Account. In using the Site to order a Product, User may establish an account with Seller that is accessible using a user name and password selected by User. User’s username and password must comply with whatever protocol is at any given time established by Seller for user names and passwords, and must not be disclosed by User to third parties. User (a) is responsible for maintaining the confidentiality of User’s user name and password, and (b) must immediately notify Seller in writing of any loss, or any unauthorized access, disclosure or use, of User’s user name or password. Seller will not have any liability to User or any third party as a result of User’s failure to keep User’s username or password confidential and may at any time, in its sole discretion and without notice to User, terminate or temporarily disable User’s access to such account. In addition, Seller may rely on any use of User’s user name or password, whether by User or a third party, as having been authorized by User, unless (a) User previously notified Seller in writing of any loss, or any unauthorized access, disclosure or use, of User’s user name or password, (b) Seller has had a reasonable opportunity of not less than five days to act on such notice, and (c) Seller’s acting on such notice would have clearly avoided any third-party use of such account that was not authorized by User.
- Content. All right, title and interest in any content (including, but not limited to, all intellectual property rights therein) made available through the Site (collectively “Content”) belongs to, or is licensed by, Seller, unless stated otherwise in writing by Seller. User may access and use any Content solely in connection with User’s authorized use of the Site, and for no other purpose; provided, however, that User may not, in any case, use any Content for any purpose prohibited by (a) Seller, in its sole discretion, after User receives notice of such prohibition, (b) this Agreement, or (c) any applicable law.
- Third-Party Vendors. Seller may rely on third parties to provide products, services and content in connection with the Site or this Agreement (individually a “Third-Party Vendor”), and Seller will have no responsibility or liability with respect to any Third-Party Vendor or any Third-Party Vendor’s websites, products, services or content. A Third-Party Vendor may impose additional terms upon User’s use of such websites, products, services and content, and User will be bound by such terms just as though they are set forth in this Agreement in their entirety.
- User’s Responsibilities. User is solely responsible and liable for (a) obtaining and maintaining all third-party equipment, software and services necessary to use the Site, (b) protecting access to, and security of, all equipment, software and services used to connect to the Site, (c) performing all of User’s obligations pursuant to this Agreement, (d) obtaining and maintaining appropriate licenses and rights for use of any third-party products (including, but not limited to, web-browser software), equipment or services in connection with using the Site, and for paying all fees associated therewith, (e) all fees payable pursuant to this Agreement as a result of the use by User or any third party of User’s account, user name or password, except as set forth in Section 3, (f) promptly reporting to Seller in writing any defect or error in, shortcoming of, and other problem with, the Site, (g) User’s compliance with all applicable law in connection with all matters for which User is responsible hereunder and User’s use of the Site, and (h) obtaining through any third party any required approval, authorization, consent, license, permission and permit to use the Site as contemplated herein.
- Right to Monitor. Seller may monitor User’s use of the Site to confirm that User is complying with User’s obligations pursuant to this Agreement or for other legitimate business purposes; provided, however, that Seller has no obligation to do so and any such monitoring will be at Seller’s sole discretion. Seller will have no liability to User or any third party in connection with its monitoring (or not monitoring) such use.
- Third-Party Sites. The Site may contain links to other websites that are not maintained by Seller. Seller is not responsible for any content contained on such other websites or otherwise with respect to such other websites. No link on the Site to another website, or on another website to the Site is an endorsement, sponsorship or recommendation by Seller of such other website and the link is provided only for User’s convenience. Seller will have no responsibility or liability to User or any third party as a result of any link between the Site and another website.
- Term. This Agreement shall be in effect as of the date User first accesses the Site and continue in effect until the earlier of (a) User’s permanently terminating User’s account on the Site or (b) Seller’s sending notice to User that Seller is terminating this Agreement, whether with or without cause. All provisions of this Agreement that, by their nature, are intended to survive termination of this Agreement shall survive any such termination and may be enforced by a party at any time after such termination, subject only to any applicable statute of limitations.
- User shall indemnify, defend and hold harmless Seller of all costs, damages, expenses, fines, liabilities, losses, penalties and other payments (including, but not limited to, fees and disbursements of counsel to Seller) resulting of, or related to, (a) User’s failure to perform any obligation or assume any responsibility pursuant to this Agreement, (b) any warranty or representation made by User in this Agreement being untrue or misleading in any respect, (c) any unauthorized use of the Site by User, (d) any unauthorized use by a third party of User’s account, user name or password, except as set forth in Section 3, (e) any products, services or content of Third-Party Vendors, or (f) except to the extent Seller is grossly negligent or engages in intentional misconduct, any use of the Site.
- Warranty Disclaimer. THE SITE IS MADE AVAILABLE TO USER “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, SELLER DISCLAIMS All IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to User.
- Limitation of Liability. THE REMEDIES DESCRIBED IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES AGAINST SELLER WITH RESPECT TO THE SITE. SELLER WILL NOT BE LIABLE TO USER OR ANY THIRD PARTY WITH RESPECT TO THE SITE, THIS AGREEMENT OR OTHERWISE FOR ANY INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES. EXCEPT IN THE CASE OF ANY GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY SELLER, IN NO EVENT WILL ANY LIABILITY OF SELLER WITH RESPECT TO THE SITE, THIS AGREEMENT OR OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY USER OR (B) $100. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT), EVEN IF THE POSSIBILITY OF ANY DAMAGES SHOULD HAVE BEEN FORESEEN BY SELLER, AND EVEN IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitations or exclusions of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to User.
- Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder of such provision, or any other provision of this Agreement, being prohibited or invalid.
- Revisions. Seller may revise any provision of this Agreement at any time by (a) posting the revised provision so that it is accessible to User on the Site, or (b) notifying User of the revised provision in an email message or other notice sent to User at the address for User in Seller’s records. Any such revision will be effective immediately upon the earlier of such posting, sending such email message or five days after such notice is placed in regular mail, with postage prepaid, as set forth in this Section. User is responsible for periodically checking this policy on the Site for revisions to this policy. Any other revision to this Agreement must be in a writing signed by Seller and User.
- Governing Law. All matters arising out of or related to these Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
- Dispute Resolution.
a. YOU AND THE COOKWARE COMPANY (USA), LLC ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR LIMITED IN ARBITRATION.
b. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND SELLER ARISING FROM OR RELATING IN ANY WAY TO THESE TERMS OR YOUR USE OF THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
c. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 16. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. Seller will be responsible for the AAA filing fee of any such proceeding.
d. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or these Terms are void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
e. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. You may elect to pursue your claim in small claims court rather than arbitration, if you provide Seller with written notice of your intention to do so within 60 days of your purchase. The small claims court proceeding will be limited solely to your individual dispute or controversy.
f. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR THE COOKWARE COMPANY (USA), LLC WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
g. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Notices. User must send notices to Seller relating to the Site or this Agreement at www.bluediamondshopping.com. Any such notice will be effective upon actual receipt by Seller. Seller may send notices to User relating to the Site or this Agreement through e-mail, regular mail or a general posting on the Site. Any such notice by Seller will be effective (a) immediately upon Seller’s sending such notice to the address it has in its records for User in the case of e-mail, (b) five days after Seller’s sending such notice to the address it has in its records for User, with postage prepaid, in the case of regular mail, and (c) immediately upon User’s entering the Site after such notice is posted on the Site.
- Waivers. No failure of Seller to exercise, and no delay by Seller in exercising, any right or remedy under this Agreement shall be a waiver of such right or remedy. No waiver of any such right or remedy shall be effective unless made in a writing signed by Seller, and specifically referring to each such right or remedy being waived.
- Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement, and no provision of this Agreement can be enforced or relied upon by any third party.
- User represents and warrants to Seller that User (1) has carefully read this Agreement, (2) is entering into this Agreement on User’s own behalf, and (3) has sufficient capacity to enter into this Agreement.
- In using the Site, User accepts the terms of this Agreement. If User does not accept these terms, User should not use the Site.