- ACCEPTANCE OF TERMS AND CONDITIONS
By using our Services, accessing the website, downloading an asset and/ or purchasing something from us, you agree to be bound by these Terms and Conditions, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms and Conditions apply to all users of the Services, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content. If you are using the Services on behalf of your company, you also acknowledge that you have authority to agree to these Terms and Conditions on behalf of your company. If you do not agree to all the provisions of these Terms and Conditions, then you may not access the Services. If these Terms and Conditions are considered an offer, acceptance is expressly limited to these Terms and Conditions.
- GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
The Services offered are available to users who are 21 years of age or older. By using the Services, you represent and warrant that you are at least 21 years old.
You warrant and represent that you have all necessary rights, power, and authority to agree to these Terms and Conditions and to perform your obligations hereunder, and nothing contained in these Terms and Conditions or in the performance of such obligations will place you in breach of any other contract or obligation.
You understand that your content (not including credit card information) may be transferred unencrypted and (a) involve transmissions over various networks; and (b) changed to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
- DFWS ACCOUNT
You may be required to create an account to use some of the features of the Services. You must keep your password confidential and you are solely responsible for maintaining the confidentiality and security of your account, all changes and updates submitted through your account, and all activities that occur in connection with your account. In creating an account, you represent to us that all information you provide in such process is true, accurate and correct, and that you will update your information as necessary to keep it accurate. You understand you may be required to provide us with certain information documenting your age or merchant status to purchase goods from us. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information. You agree to notify us immediately of any unauthorized use of your account by contacting us at the information provided below and to change your password. You may not transfer your account to anyone else without our prior written permission.
DFWS has the right to disable any account, user name, password, or other identifier, whether chosen by you or provided by DFWS, at any time in DFWS’s sole discretion for any or no reason, including if, in DFWS’s opinion, you have violated any provision of these Terms and Conditions or misused creative assets which have been approved by DFWS (“Approved Content”). If we take this action, we will take reasonable steps to notify you the next time you attempt to access your account. You may deactivate your account at any time.
- Access to Approved Content & the Services
In connection with your use of the Services, you may be given direct access to Approved Content which are located on the Services in the section labeled “Assets”. DFWS may restrict, modify and/or remove Approved Content at any time in its sole discretion without notice to you. This direct access is granted to you by DFWS for the sole purpose of reviewing and using the Approved Content for marketing and promoting the DFWS’ products strictly in accordance with applicable law and regulation, DFWS’s high standards of quality and any guidelines which DFWS may issue from time to time and in conformance with industry standards. DFWS will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, DFWS may restrict access to some parts of the Services, or the entire Services, to users, including registered users.
Some of the images contained in the Approved Content may not be available for use outside the United States. If you are uncertain as to where a particular image may be used, please contact DFWS prior to any use.
Expired and Historical Images
User understands that from time to time in its sole discretion, DFWS may add to, delete from, or modify the Approved Content or portions of the Approved Content on the Services. User will undertake all reasonable measures not to use any expired or historical images deleted or subsequently modified by DFWS.
You may use the Services only for lawful purposes and in accordance with these Terms and Conditions. You agree not to:
- publicly display the Services or details regarding the Services without express written consent from DFWS.
- use the Services beyond the scope of the authorization granted hereunder or in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- use the Services to impersonate or attempt to impersonate DFWS, any DFWS employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- use the Services to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by DFWS, may harm DFWS or users of the Services, or expose them to liability.
Additionally, you agree not to:
- Reproduce, duplicate, copy, sell, resell or exploit (i) any portion of the Services,(ii) use of the Services, or (iii) access to the Services, without express written permission by us.
- Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms and Conditions, without DFWS’s prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Services, or introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack, or otherwise attempt to interfere with the proper working of the Services.
Unauthorized use of any Approved Content shown on the Services is strictly prohibited pursuant to U.S. and international copyright, trademark and other applicable intellectual property laws and constitutes a violation of these Terms and Conditions. Unauthorized use shall result in (1) revocation of such User’s rights to use the Services; and (2) DFWS (and the cloud-based host of the Services) availing themselves of all remedies available at law or in equity.
- PURCHASES THROUGH THE SERVICES
Transactions Involving Alcohol
Alcoholic beverages (including but not limited to wine and spirits, as applicable; all referred to as “Alcoholic Beverages”) may only be purchased by consumers who are the legal age in jurisdictions that permit such purchase (“Legal Age”).
Consumers expressly represent and warrant that you are of Legal Age and understand you will be required to (1) confirm your date of birth at checkout; and (2) provide a government-issued photo identification to the delivery person upon delivery of your purchase. Valid forms of identification include but are not limited to: (i) a valid motor vehicle operator’s license, (ii) a passport issued by the U.S. or by a foreign government, or (iii) a valid identification card issued to a member of the Armed Forces that includes a date of birth and a picture, showing your Legal Age.
Order Acceptance and Billing
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, per merchant or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors, or that would violate the alcoholic beverage laws, regulations, or advisories of any State.
You agree to provide current, complete, and accurate purchase and account information for all purchases. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s). You will not be charged for most orders until the order has shipped. You acknowledge and agree the (1) shipment courier will require you to provide government-issued photo identification that shows you are of Legal Age upon delivery; and (2) shipment courier reserves the right, at his or her discretion, to refuse delivery and return the item(s) if you do not do so.
Pricing & Availability
Prices for our products are subject to change without notice. Pricing errors may occur on the Services. We reserve the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from us. You agree that in the event we cannot fulfill a wine order of a particular vintage, we will contact you via email to discuss either (1) substituting a vintage of similar quality and value; or (2) amending your order. We may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products on the Services may differ from pricing for product sold in stores or with other vendors.
Certain products may be available exclusively online or have limited quantities.
We reserve the right, but are not obligated to, limit the sales of our products to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products that we offer. All descriptions of products or product pricing are subject to change at any time without notice, in our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product made on this site is void where prohibited.
Title and Risk of Loss
All items purchased through the Services are made pursuant to a shipment contract. The risk of loss and title for such items pass to you upon acceptance of the shipment from the shipment carrier.
Refunds & Exchanges
We cannot accept returns of alcoholic beverages. Orders cannot be cancelled after 24 hours or after they have shipped, whichever comes first. Please note some orders ship the same day. Please contact Josh Cellars at firstname.lastname@example.org, The Calling at email@example.com, or Joseph Carr Wines at firstname.lastname@example.org for assistance.
Where our Services contains links to other sites and resources provided by third parties, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
Promotional Codes & Special Offers.
DFWS may offer promotional codes, discounts, or special offers (“promo codes”). Promo codes can only be redeemed for DFWS purchases on the Services. They are not redeemable for cash, cash equivalent, or other consideration. They may not be copied, sold, or otherwise transferred. Consumers may not make promo codes available to the general public without DWFS’s express permission. Promo codes are subject to these Terms and Conditions and any other conditions that we, in our sole discretion, impose on them. Promo codes may only be applied where all required conditions are met. Promo codes are void where prohibited by law.
DFWS may, in its sole discretion, offer promo codes with different conditions, features, and different rates to any consumer. Promo codes may be valid only for certain consumers as indicated in the offer. Promo codes may only be used by the intended audience, for the intended purpose, and in a lawful manner.
Promo codes are limited in nature. Unless DFWS indicates otherwise, promo codes are only valid for one use, do not apply retroactively to past DFWS purchases, and cannot be combined. DFWS may disqualify a consumer who does not meet promo code criteria, including but not limited to if DFWS has records (e.g., an account, purchase history) that consumer using a “new customer” offer is not qualified. Promo codes are not valid for use after the date indicated in the offer. If your DFWS account is cancelled for any or no reason, you may lose any pending, current, or future promo codes without prior notice.
DFWS reserves the right in its sole discretion to change or cancel promo codes or change the promo codes’ terms and conditions at any time for any reason without notice. DFWS also reserves the right to withhold or deduct credits or benefits obtained through a promo code in the event that DFWS determines or believes that the redemption of the promo code was in error, fraudulent, illegal, or in violation of the applicable terms or these Terms and Conditions. The consumer redeeming the promo code is responsible for paying any applicable sales tax related to the use of such code. DFWS has no obligation for payment of any tax in conjunction with the distribution or use of any promo code.
- ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We do not warrant that information made available on the Services is accurate, complete, reliable, error-free, or current. The material on the Services is provided for general information only and should not be relied upon or used as the sole basis for making decisions. Any reliance on the material on the Services is at your own risk.
We have made every effort to display as accurately as possible the appearance of our products or Assets. We cannot guarantee that your computer monitor’s display of any product’s or asset’s characteristics (such as color) will be accurate.
This Services may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on the Services. You agree that it is your responsibility to monitor changes to the Services.
- MODIFICATIONS TO THE SERVICES AND PRICES
We reserve the right at any time to modify or discontinue the Services (or any part or content thereof) or change the prices of our products without notice at any time. We shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Services.
- INTELLECTUAL PROPERTY RIGHTS
All content on the Services (including, but not limited, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, information, code and software, and the selection and manner of compilation and presentation) (the “Website Data”), is owned by DFWS, other content providers, or their licensors, and may be protected by copyright, trademark, and other applicable laws.
Your access to and use of the Services does not grant you any license or right to use any trademark, logo, or service mark displayed on the Services except as expressly authorized herein. DFWS, other content providers, and/or their licensors retain full and complete title to and reserve all rights in the material on the Services, including all associated intellectual property rights. DFWS neither warrants nor represents that your use of materials on the Services will not infringe rights of third parties.
You may not modify or delete any copyright, trademark or other proprietary notices relating to the material you access.
As between you and DFWS, DFWS owns or has the license to all trade names, product names, designs, logos, photographs, text or images within the Services and the Approved Content, including the trademarks, patents, service marks, trade names, copyrights or other property therein. The unregistered and registered trademarks on the Services are the property of their respective owners, with DFWS having rights and/or license of use according to the agreements reached with said owners. Nothing contained on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Approved Content except for marketing or promoting official DFWS products in strict accordance with the terms agreed to when accessing and/or downloading the Approved Content. All other rights are expressly reserved to DFWS.
You (on behalf of yourself and your company) agree not to (i) do or fail to do anything which might jeopardize DFWS’s or its licensor’s ownership or rights to the intellectual property in the Services and/or Approved Content, or (ii) file for registration or otherwise claim ownership rights in such intellectual property or (iii) file for registration or otherwise similar rights to such intellectual property. You agree that all use of the Services and/or Approved Content inures to the exclusive benefit of DFWS and/or its licensor, as applicable. You also understand and agree that your authorization to use the Services and/or Approved Content may be terminated at any time by DFWS at its sole discretion, in which case you will immediately cease all such use.
Furthermore, in consideration of your access to and use of the Services and/or Approved Content, you on behalf of yourself and your company (if applicable) hereby assign to DFWS any and all copyrights (or other intellectual property rights) which may arise in any work product or derivative works resulting from use of the Services and/or Approved Content. Such assignment is made without any obligation of payment or further compensation. You and your company agree to sign and deliver any ancillary documentation which DFWS may request to effectuate the foregoing assignment.
All Website Data used on the Services is the property of DFWS or our licensors and protected by United States and international copyright laws. Subject to these Terms and Conditions, DFWS hereby grants you a limited, revocable, non-exclusive, non-sublicensable, non-assignable license to use the Services and/or Approved Content as set forth herein and for your informational purposes. This license does not include any: (i) resale of the Services other than Approved Content or as permitted in writing by DFWS; (ii) any collection and use of any product listings, descriptions, or prices; (iii) any derivative use of the Services; (iv) any downloading or copying of account information for the benefit of another merchant; or (v) any use of data mining, robots, or similar data gathering and extraction tools. You may not attempt to discover any source code, modify, publish, adapt, transmit, participate in the transfer or sale of, exhibit, distribute, display, reverse engineer, decompile, dissemble, perform, reproduce, create derivative works from, or in any way exploit any of the Services, in whole or in part. Downloading or copying the Services (including the Website Data) for other than personal use is expressly prohibited without the prior written permission of DFWS or any other copyright owner. You acknowledge that you do not acquire any ownership rights by accessing, downloading, or copying any of the Services (which includes the Website Data), nor may you frame or utilize framing techniques to enclose any trademark, logo, or copyrighted material from the Services or use any meta tags or any other hidden text utilizing our names or trademarks, without the express written consent of DFWS.
Without our prior written permission, you agree not to display or use in any manner the DFWS marks.
All rights not expressly granted herein are reserved. You agree to abide by all additional restrictions displayed on the Services as they may be updated from time to time.
- THIRD PARTY LINKS & TOOLS
We may provide you with links to third party websites, third-party materials, or access to third party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such links, materials, or tools ”as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no responsibility or liability whatsoever arising from or relating to your use of these third-party websites, materials, or tools or any purchases or use of goods or services offered therein. Any use by you is entirely at your own risk and discretion. You should ensure that you are familiar with and approve of the terms associated with such third-party websites or tools. Complaints, claims, concerns, or questions regarding third-party websites, tools, materials, products, or services should be directed to the third party.
- COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions or, without a request from us, you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms and Conditions. You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third party.
- ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on the Services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Services or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Services or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Services or on any related website, should be taken to indicate that all information in the Services or on any related website has been modified or updated.
- DISCLAIMER OF WARRANTIES
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS AND CONDITIONS.
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SERVICES AT ANY TIME, WITHOUT NOTICE TO YOU.
WE DO NOT WARRANT THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, APPROVED CONTENT, OR OTHER MATERIAL DOWNLOADED, PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES (INCLUDING APPROVED CONTENT), AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICES ARE (EXCEPT AS EXPRESSLY STATED BY US) ARE PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO CASE SHALL DFWS, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICES PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICES, APPROVED CONTENT, OR ANY PRODUCTS PROCURED USING THE SERVICES, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES, APPROVED CONTENT, OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICES, APPROVED CONTENT, OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, EVEN IF ADVISED OF THEIR POSSIBILITY.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT DFWS IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO DFWS IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF DFWS FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY DFWS’S GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY DFWS’S FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DFWS AND YOU.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT’S “ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS.” SIMILARLY, THIS SECTION DOES NOT LIMIT DFWS’S TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM DFWS’S OWN INTENTIONAL OR RECKLESS CONDUCT.
To the fullest extent allowed by applicable law, you agree to indemnify, defend and hold harmless DFWS, its subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by you and/or any third-party due to or arising out of your breach of these Terms and Conditions or the documents they incorporate by reference or your violation of any law or the rights of a third-party. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide reasonable notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder). You and your company (if applicable) shall have the option to undertake and conduct the defense of any such Claim. You and your company (if applicable) shall keep DFWS fully apprised of all developments in such action and shall not enter into any settlement or admit liability or fault without DFWS’s full prior written approval; and at the request and sole expense of you and your company (if applicable), DFWS agrees to reasonably assist and cooperate with you and your company in any such action.
This provision does not require you to indemnify DFWS for any unconscionable commercial practice by DFWS or for DFWS ‘s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms and Conditions or your access to the Services, including the purchase of any items on the Services.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold DFWS and its subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms and Conditions.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
These Terms and Conditions are effective unless and until terminated by either you or us. You may terminate by deactivating your account or ceasing to use our Services. We are also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms and Conditions. We have the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms and Conditions.
Even after your right to use the Services is terminated, these Terms and Conditions will remain enforceable against you and unpaid amounts you owe to DFWS for purchases will remain due.
Provisions that, by their nature, should survive termination of these Terms and Conditions shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, and any terms regarding ownership or intellectual property rights.
Electronic Communications. You agree to receive communications from DFWS electronically, such as emails, texts, mobile push notices, or notices and message on the Services, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that DFWS provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in written form.
No Third-Party Beneficiaries. These Terms and Conditions are not enforceable by or for the benefit of any third party.
Assignment. You may not assign, delegate, or transfer these Terms and Conditions or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without DFWS’s prior written consent. We may transfer, assign, or delegate these Terms and Conditions and our rights and obligations without your consent.
Force Majeure. DFWS shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, pandemics, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Choice of Law. These Terms and Conditions and any dispute of any sort that might arise between you and DFWS will be interpreted in accordance with the law of the state of New York, without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
Exclusive Venue. Any claim or dispute that between you and DFWS that arises out of or is related to the Terms and Conditions and/or the Services shall be decided exclusively by a court of competent jurisdiction located in New York County in the state of New York, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of New York County in the state of New York.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim (except for enforcing the Indemnification provision above) arising out of or related to the Terms and Conditions and/or Services must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Notice. Where DFWS requires that you provide an email address, you are responsible for providing DFWS with your most current email address. In the event that the last email address you provided to DFWS is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms and Conditions, DFWS’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to DFWS at the following address: DFWS, 201 Tresser Blvd., Suite #500, Stamford, CT 06901-3435The notice must also be sent via email to : email@example.com. Such notice shall be deemed given when received by DFWS by letter delivered at the above address postal address and email address.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. These Terms and Conditions and any policies or operating rules posted by us through the Services (including but not limited updates posted via pop-up on the Services) constitute the entire agreement and understanding between you and us and govern your use of the Services, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms and Conditions). These Terms and Conditions shall not be modified by any of: (i) course of performance between the parties; (ii) course of conduct or dealing between the parties; or (iii) applicable trade practice.
Waiver. The failure of us to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision.
Severability. In the event that any provision of these Terms and Conditions is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms and Conditions, such determination shall not affect the validity and enforceability of any other remaining provisions.
Interpretation. Any ambiguities in the interpretation of these Terms and Conditions shall not be construed against the drafting party.
Section Titles. The headings used in the Terms and Conditions are included for convenience only and will not limit or otherwise affect these Terms.
- CHANGES TO TERMS AND CONDITIONS
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms and Conditions. The most current version of the Terms and Conditions will be posted on the Services and it is your responsibility to check our website periodically for changes. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Services (including via a pop-up) or via email. Your continued use of the Services following the effective date of any changes to these Terms and Conditions constitutes acceptance of those changes. If you do not agree to the new Terms and Conditions, you may not use the Services.
- CONTACT INFORMATION
If you have any questions or concerns with respect to these Terms and Conditions or the Services, or to report any violations of these Terms, please contact us at firstname.lastname@example.org.