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Terms of Use Agreement
This Furnishings.com
Terms of Use Agreement is entered into by and between
Furnishings.com, Inc. (herein
after also referred to as “FCI”) and the business whose
information and authorized signature is set forth below (herein after
referred to as “you” and/or “your”). By virtue of using our sites you
agree immediately to be bound to this Agreement. This Agreement may
also be executed by facsimile and/or in multiple counterparts. In
that case, once executed by both parties, this Agreement is effective
as of the latest date set forth next to the signatures (“Effective
Date”). The following describes the terms on which FCI
offers you access to our services.
Introduction
Welcome to Furnishings.com. By
using the services on the FCI websites (Furnishings.com, other
related websites and online applications where this agreement
appears) (the “Sites” or the “FCI
Platform”), you are agreeing to the following terms, including
those available by hyperlink, (the "Agreement") with FCI
and the general principles for the websites of our subsidiaries
and international affiliates.
Before you may become a user of Furnishings.com,
you must read and accept all of the terms and conditions
in, and linked to, this Terms of Use Agreement and the Privacy Policy attached hereto as Exhibit B and incorporated herein by reference. We strongly recommend that,
as you read this Agreement, you also access and read the linked information. By accepting this
Agreement, you also agree that your use of some Furnishings.com
-branded websites or websites we operate may be governed by separate user agreements and privacy policies. The agreement that
applies on any of our domains and subdomains is always the agreement that appears in the footer of each website.
PLEASE READ the following before accessing the FCI website(s). It is important for you to know
that EACH AND EVERY TIME you access and use this web site or any of FCIs’ services,
you agree to these terms of use and conditions.
Services
FCI is an online platform that allows manufacturers to self-publish and
maintain their furnishings product offerings, and allows others in the industry access to such
manufacturers and their product and service offerings. Any new
features or updated services that we put on the FCI site will
be subject to the terms of use below. Every time you use Furnishings services, you agree to the
terms below. If at any point you do not agree with the terms and conditions of use, you are not authorized to
use any of the FCI services for any purpose whatsoever.
Right to Refuse
FCI reserves the right to refuse service to anyone for any reason or no reason whatsoever.
Using Furnishings.com
You agree to use this site for lawful purposes only. As a user of the FCI
Platform you agree that you will:
- NOT post content or items in an inappropriate category or areas on the Sites;
- NOT violate any laws, third party rights, or our policies detailed in this Terms of Use Agreement;
- NOT use the Sites if you are not able to form legally binding contracts, are under the age of 18, or
are temporarily or indefinitely suspended from our Sites;
- NOT fail to maintain your content changes in a timely manner.
- NOT manipulate or interfere with other user's listings;
- NOT circumvent or manipulate our fee structure, the billing process, or fees owed to FCI.
- NOT post false, lewd, inaccurate, misleading, defamatory, or libelous content (including personal information);
- NOT take any action that may undermine our data analysis systems (such as displaying, importing or exporting
information off of the Sites or for using it for purposes unrelated to FCI);
- NOT transfer your FCI account and login ID to another party without our consent;
- NOT distribute or post spam, chain letters, or pyramid schemes;
- NOT distribute viruses or any other technologies that may harm FCI, or the interests or property of FCI users;
- NOT copy, modify, or distribute content from the Sites and Furnishings.com's copyrights and trademarks;
- NOT harvest or otherwise collect information about businesses and users;
- MAINTAIN your Content with the most up to date product information; and
- MAINTAIN your business in good standing as determined under relevant state and federal laws and regulations.
Violations of User Conduct
FCI may terminate your use of this site or any FCI services without notice if you fail to adhere to these terms, or if in FCI’s sole discretion, termination is appropriate to protect the business or property of FCI or its subscribers, suppliers or partners. Without
limiting other remedies, we may limit, suspend, or terminate our service and user accounts, prohibit access to our website, remove hosted content, and take technical and legal steps to keep users off the Sites if we think that they are creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of our policies.
User Account/Passwords
Upon registration, you will receive a username (a login) and a password. You are responsible for ensuring the confidentiality and security of your account information. You agree to properly logout of each FCI session and to not disclose your account information to others. You
also agree to notify FCI immediately if there is unauthorized access or use of your account. FCI will not be liable for any losses or damages that result from failure to notify FCI immediately of such unauthorized access or use. By obtaining a password, you authorize FCI to honor instructions from any person using that password as if you had given the instructions. All actions taken by use of your password will be your responsibility. FCI reserves the right to remove your access or anyone’s access to its Sites if in its sole discretion it is appropriate to do so. You may cancel your account by emailing subscriptions@furnishings.com.
You are encouraged to change your password from time to time and you may do so directly on the Site.
Fees and Services
FCI charges fees for publishing your Content (defined herein) and providing access to Content for other Users’
(defined herein). Such fees are posted on one or more of our Sites or if set forth in Exhibit A (attached hereto and incorporated herein), the fees shall be as stated therein. In the event of any conflict between the terms contained herein and the terms optionally
contained in an Exhibit A, the terms in Exhibit A shall control. We may choose to temporarily change the fees for our services for promotional events or new services, and such changes are effective when we post the temporary promotional event or new service on the Sites.
Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with the Sites in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies, and legal counsel for accounts over 180 days past due, as well as others.) We assume no liability for any removal of your account as a result of any late or
non-payment of your fees.
Content License
You and other Users provide FCI with content (“Content”) to post on the FCI website(s) with information about products and services relevant to the furnishings industry. When you provide us Content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the Content, in any media known now or in the future for the purpose of (i) publishing such Content on the Sites, and (ii) allowing other FCI Platform users to view such Content.
No Liability.
FCI assumes no liability whatsoever regarding the
Content, including without limitation, its accuracy, reliability, or uninterrupted access thereto. FCI assumes no responsibility
for the loss of any Content or the interruption of access thereto, and FCI will not be responsible for backing up any Content, or verifying its accuracy or reliability. You assume all liability for Content, including responsibility for maintaining back-up or duplicate copies of the Content.
Editorial Rights. While FCI holds no obligation to monitor the Content posted on or transmitted
through the FCI Platform, FCI reserves the right to monitor the Content if it so chooses and to remove, reject or edit all or part of such Content at its discretion if it violates the FCI Terms of Use or Privacy Policy, is harmful, unproductive or objectionable, or for any other reason
FCI in its sole discretion deems reasonable.
Furnishings Proprietary and Intellectual Property Rights
Notwithstanding the foregoing, FCI owns all right, title, and interest in the intellectual property in the FCI Platform, Sites and User webpages on the Platform other than the Content, including without limitation, FCI data and metadata derived from usage within the FCI Sites. You agree
not to make any representations to the contrary to any third party.
Except as otherwise stated herein, no licenses are implied or granted by this Agreement to any of FCI intellectual property rights.
The services of the FCI platform, its organization, structure, programming and user interface are copyrighted and protected by international and U.S. laws regarding copyrights, intellectual property rights, trademarks and patents. You acknowledge and agree that Content and information of Users are also protected by U.S. and international copyright, trademark, patent and
intellectual property laws. FCI allows you to use this site and services with the agreement that you will not copy, modify, reverse
engineer, or otherwise attempt to discover any source code or recreate any part of or the whole platform. Reproduction of the FCI platform in any part or form is strictly prohibited. ”FCI ”, the FCI logo, “Furnishings.com”, and all other trademarks, service marks, slogans, tag lines, graphics and logos used in connection with FCI, or the Furnishings.com site are trademarks or registered trademarks of FCI or its affiliates.
Conduct/Content of Third Party Users
FCI is
not responsible for your dealings or involvements with third party
users of the
FCI
website, including manufacturers, retailers, designers, decorators,
advertisers or service
dealers
(“Users”) or for any of User’s Content found on the
FCI website, including but not
limited
to quality of, payment, and delivery of goods or services, and any
other terms, conditions or
warranties.
FCI will not be responsible for any losses or damages incurred from
dealings with
or
contact with third parties available through the platform.
FCI is
not responsible for the accuracy or availability of Content or any
information found on
the FCI
Platform or on web sites of Users. We do not endorse nor are we
liable for products,
services,
advertising or information made available by the Content or these
links and will not be held
responsible
for any damages or losses that result from interaction with any User
or links accessed
through
the platform. Your access and use of any User products
or services or websites, Content or materials is done so at your
own risk. Please refer to each such User’s terms of use and
privacy policy.
Release
If you have a dispute with one or more Users, you release FCI (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected
with such disputes. If you are a California resident, you waive California Civil Code §1542, which says:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Limited Liability
You will not hold FCI responsible for other Users' actions or inactions, including their
Content.
You acknowledge the Sites are a venue to allow subscribers to offer,
and potentially direct buyers
to
their resellers at anytime, from anywhere, in a variety of formats.
We are not involved in the actual
transaction
between buyers and sellers. We have no control over and do not
guarantee the quality,
safety
or legality of items advertised, the truth or accuracy of listings,
the ability of sellers to sell items,
the
ability of buyers to pay for items or the professional legitimacy of
the buyer.
We are
not liable for any loss of money, goodwill, or reputation, or any
special, indirect, or
consequential
damages arising out of your use of our Sites. Some jurisdictions do
not allow the
disclaimer
of warranties or exclusion of damages, so such disclaimers and
exclusions may not apply to
you.
Further, we cannot guarantee continuous or secure access to our
services, and operation of the
Sites
may be interfered with by numerous factors outside of our control.
Accordingly, to the extent
legally
permitted, we exclude all implied warranties, terms and conditions.
EXCEPT
AS OTHERWISE EXPRESSLY STATED, IN NO EVENT WILL FCI OR ITS
AFFILIATES
BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT,
SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR
NATURE
OF THE CLAIM, RESULTING FROM ANY USE OF THE SITE OR PLATFORM, OR
THE
CONTENTS THEREOF OR OF ANY HYPERLINKED WEBSITE INCLUDING WITHOUT
LIMITATION
ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR
OTHERWISE,
EVEN IF FCI OR ITS AFFILIATES WERE EXPRESSLEY ADVISED
OF THE
POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS MAY NOT ALLOW THE
EXCLUSION
OR LIMITATON OF LIABILITY FOR CERTAIN INCIDENTAL OR
CONSEQUENTIAL
DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY
TO YOU.
Regardless
of the previous paragraph, if we are found to be liable, our
liability to you or to any third party is limited to the greater of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, and (b) $100.
Indemnification
You agree to defend, indemnify and hold harmless FCI, its contractors, and its licensor's, and their
respective directors, officers, employees and agents from and against any and all claims and expenses,
including attorneys' fees, arising out of your use of the FCI site or
platform, including but not limited to your violation of any representation or warranty contained in these Terms of Use, your breach of this Agreement, or your violation of any law or the
rights of a third party.
Access and Interference
The Sites contains robot exclusion headers. Much of the information on the Sites is updated on a real-time basis and is proprietary or is licensed to FCI by our users or third parties. You agree that
you will not use any robot, spider, scraper or other automated means to access the Sites for any purpose without our express written permission. Additionally, you agree that you will:
i. NOT take any action that imposes
or may impose (in our sole discretion) an unreasonable or disproportionately large load on our
infrastructure;
ii. NOT copy, reproduce, modify,
create derivative works from, distribute in bulk, or publicly display any content (except for Your Information) any content from the Sites without the prior expressed written permission of FCI and the appropriate third party, as applicable;
iii. NOT interfere or attempt to interfere with the proper working of the Sites or any activities conducted on the Sites; or
iv. NOT bypass our robot exclusion headers or other measures we may use
to prevent or restrict access to the Sites.
Privacy
We will only collect and use your user information as designated in our Privacy Policy.
No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Disclaimer of Warranties
EXCEPT
AS OTHERWISE EXPRESSLEY STATED, ALL SERVICES, TOOLS, PRODUCTS AND
ANY
OTHER PLATFORM COMPONENTS AVAILBLE FROM THE FCI SITE AND
PLATFORM
ARE PROVIDED “AS IS,” AND FCI AND ITS AFFILIATES MAKE NO
REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED
TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE,
TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. FCI
AND ITS
AFFILIATES DO NOT WARRANT THAT USE OF THIS SITE AND ITS SERVICES
WILL BE
ERROR FREE, SECURE, FREE OF DEFECTS, OR VIRUSES OR THAT
INFORMATION
CONTAINED ON THE SITE IS ACCURATE OR TRUE. YOU UNDERSTAND
AND
AGREE THAT YOUR USE OF THE SITE AND SERVICES THROUGH THE
FCI
PLATFORM IS AT YOUR OWN DISCRETION AND RISK, AND THAT
FCI AND
ITS AFFILIATES WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR
ANY
DAMAGES INCURRED THAT RESULT FROM THE USE OF SUCH CONTENT OR
SERVICES.
YOU
REPRESENT AND WARRANT THAT YOUR USE OF THE SITE AND PLATFORM WILL
BE IN
ACCORDANCE WITH FCI'S PRIVACY POLICY, TERMS AND
CONDITIONS,
ANY APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT
LIMITATION
ANY LOCAL LAWS OR REGULATIONS IN YOUR COUNTRY, STATE, CITY,
OR
OTHER GOVERNMENTAL AREA, REGARDING ONLINE CONDUCT AND ACCEPTABLE
CONTENT,
AND INCLUDING ALL APPLICABLE LAWS REGARDING THE TRANSMISSION
OF
TECHNICAL DATA EXPORTED FROM THE UNITED STATES OR THE COUNTRY IN
WHICH
YOU RESIDE, AND WITH ANY OTHER APPLICABLE POLICY OR TERMS AND
CONDITIONS.
Termination of Service
We reserve the right to modify or terminate service of all or any part of the FCI platform at any time without notice. You agree that all terminations shall be made at the discretion of FCI and FCI will not be held liable to you or to any third party for any such
modification or termination of services.
Modifications to Terms of Use
Modifications and amendments to these terms may be made at any time, and will be
effective immediately. An updated version of the terms of use will always be available for
review on line. FCI, under no obligation, may elect to notify you of these changes. You
must periodically check the terms of service to keep apprised of any and all modifications
made. By continuing to access this site you agree to continue to be bound by these terms.
Your Comments/Suggestions
By sending any suggestions, improvements, concepts, information or other
materials to FCI in regards to the platform, you grant FCI the worldwide, nonexclusive,
royalty-free, irrevocable, perpetual right to use and distribute any materials, software or content
developed from the content you
send. FCI has no obligation to pay you or anyone else any royalties or
other fees associated with the reproduced content or ideas.
Notices
Except as explicitly stated otherwise, legal notices shall be served on Furnishings.com, Inc. 1355 Market Street - Suite 301 San Francisco, CA 94103 by mail (in the case of FCI) or
to you by email at the contact email address provided to us. Notice shall be deemed given 24
hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.
Severability / Waiver
If any
provision of these terms is unenforceable, the other terms will
remain in full force and effect. No waiver of any of these terms is a further or continuing waiver of that or any other term.
Governing Law / Resolution of Disputes
If a dispute arises between you and FCI, our goal is to provide you with a
neutral and cost effective means of resolving the dispute quickly. Accordingly, you and FCI
agree that we will resolve any claim or controversy at law or equity that arises out of this
Agreement or our services (a "Claim")
in accordance with one of the subsections below or as we and you
otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first
contact us directly to seek a resolution by going to the Support help page. We will consider reasonable
requests to resolve the dispute through alternative dispute resolution procedures, such as mediation
or arbitration, as alternatives to litigation. By accessing the FCI website and agreeing to these
terms of use you forfeit any rights you have to litigating any related disputes or claims in
court.
(a)
Law and Forum for Disputes. This Agreement shall be governed in all
respects by the laws of the State of California as they apply to agreements entered into and to
be performed entirely within
California between California residents, without regard to conflict
of law provisions. You agree that any claim or dispute you may have against FCI must be
resolved by a court located in San Francisco County, California, except as otherwise
agreed by the parties or as described in the Arbitration Option paragraph below. You agree to
submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
(b)
Arbitration Option. For any claim (excluding claims for injunctive or
other equitable relief) where the total amount of the award sought is less than $10,000, the party
requesting relief may elect to resolve the dispute in a cost effective manner through binding
non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such
arbitration through an established alternative dispute resolution ("ADR") provider mutually
agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions,
the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration
shall not involve any personal appearance by the parties or witnesses
unless otherwise mutually agreed by the parties; and c) any judgment on the award
rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c)
Improperly Filed Claims. All claims you bring against FCI must be
resolved in accordance with this Resolution of Disputes Section. All claims filed or brought
contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you
file a claim contrary to the Resolution of Disputes Section, FCI may recover attorneys'
fees and costs up to $1000, provided that FCI has notified you in writing of the
improperly filed claim, and you have failed to promptly withdraw the claim.
Furnishings.com's
and your authorized representatives have read the foregoing and all
documents incorporated herein and agree and accept such terms as of this Effective Date.
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