Tête-à-Tête, Inc.

Terms of Use Agreement

Last Updated: May 2018

Welcome to the Finery services operated by Tête-à-Tête, Inc. (the “Company,” “we,” or “us”).  Finery is for anyone who wears clothing.  At Finery, we aim to help you ACTUALLY WEAR WHAT YOU ALREADY OWN with a virtual wardrobe management tool designed to help you get organized, plan looks ahead, peruse street style inspiration, and build the ultimate clothing wishlist.  The cherry on top? Get sale alerts for items you’ve saved and return reminders for items you’ve recently purchased.

Before you get started you MUST carefully read this Terms of Use Agreement because you are bound by this Agreement if you VISIT, BROWSE, OR USE the Finery application or Finery website as described in detail below.

This Terms of Use Agreement (“Agreement”) constitutes a binding agreement between you (“End User” or “you” or “your”) and the Company (you and Company may be referred to in this Agreement collectively as the “Parties”).  This Agreement governs your use of any service provided by us including, without limitation, the Finery application (including all related documentation, the “Application”) and the Finery website (located at http://www.finery.com) (the “Website” and collectively with the Application the “Service”).  The Application is licensed, not sold, to you.  BY (A) VISITING OR USING THE WEBSITE; (B) ACCESSING, ACTIVATING, OR USING THE SERVICE OR APPLICATION; OR (C) CREATING AN ACCOUNT (EITHER DIRECTLY THROUGH THE SERVICE, THROUGH A THIRD PARTY, OR THROUGH A SOCIAL NETWORKING SERVICE SUCH AS PINTEREST.COM.  (A “SOCIAL NETWORKING SERVICE”)), YOU AGREE TO BE BOUND BY THIS AGREEMENT.  If you do not wish to be bound by this Agreement, do not undertake any of these aforementioned activities. 

If you access the Service through—or use the Service to access—a third party website, Social Networking Service, or mobile applications provider, then the applicable third party website, Social Networking Service, or mobile applications provider may have additional terms and conditions that are applicable to your use of the applicable website, Social Networking Service or mobile application and you must also comply with these terms and conditions, as applicable.  You agree that we will have no responsibility or liability for any such use, access, agreement, or transaction of or between you and any third party or Social Networking Service.

Notice Regarding Dispute Resolution:  This Agreement contains provisions that govern how claims you and we may have against each other are resolved (see Section 21 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 21.  Unless you opt-out of arbitration:  (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

1.           Affirmative Representations Regarding Your Use of the Service.

WHEN YOU USE THE SERVICE, YOU REPRESENT AND WARRANT TO THE COMPANY THAT (A) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) YOU ARE AT LEAST 13 YEARS OF AGE; AND (C) YOU ARE OF SUFFICIENT LEGAL AGE OR OTHERWISE HAVE LEGAL CAPACITY TO LEGALLY ENTER INTO THIS AGREEMENT.

2.           Privacy Policy.

In connection with your use of the Service, please review our Privacy Policy, located at https://www.finery.com/privacy, to understand what information we collect from you, why we collect the information and how we use information we collect from you when you access, visit, or use the Service.  The Privacy Policy is part of and is governed by this Agreement.  By agreeing to the terms of this Agreement, you acknowledge that you have received and reviewed the Privacy Policy and that you agree to be bound by the terms of the Privacy Policy and agree that we may use information collected from you in accordance with the terms set forth in the Privacy Policy. 

3.           Account.

In order to participate in or receive certain portions of the Service (including, but not limited to, the Application), you will be required to create an account with the Company (“Account”) and you may also be required to maintain an account with the Social Networking Service through which you typically access the Service or with the applications provider for your supported mobile device.  Once you create an Account, your Account will allow you to access the Application.  You may control certain aspects of how you interact with the Service by changing the settings in the Application and/or the Social Networking Service through which you access the Service.  When accessing the Service through a Social Networking Service, your ability to adjust the settings that control these preferences is solely within the control of the Social Networking Service you use.  Your Account is for your individual, personal, and non-commercial use only, and you may not authorize others to use your Account for any purpose.  By creating your Account, you certify that all information you provide is complete and accurate.  You agree to update your information when required or requested, and you further agree not to use another person’s account without permission.  You are responsible for maintaining the confidentiality of, and restricting access to, your Account and the associated password, and you agree to accept sole responsibility for all activities that occur under your Account or password.  You agree to notify us immediately at help@finery.com of any breach of security or unauthorized use of your Account or any violation of this Agreement by others of which you are aware.

4.           Service Requirements.

In order to access or participate in the Service, you will need telecommunications access to a mobile phone, tablet, or personal computer mobile device owned or otherwise controlled by you, connected to the internet, and compatible with the Service (each a “Device”).  You will also be responsible, at your expense, for all telecommunications access and telephone service required to access or participate in the Service and all related third-party service fees (including ISP charges).  Certain messaging, service, and other fees and charges may be applied by your carrier.  Please check with your carrier to ensure that you are aware of any applicable fees and charges relating to your particular service plan.  The Company is not responsible for any expenses incurred by you while accessing or using the Service.

5.           Company Proprietary Rights; License Grant.

5.1          Reservation of Rights.

 You acknowledge and agree that the Service is provided under license and is not sold to you.  You do not acquire any ownership interest in the Service under this Agreement or any other rights other than to use the Service in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement.  The Company and its licensors and service providers reserve and retain exclusive ownership of—and all right, title, and interest in and to—the Service and all content and materials provided in connection with the Service (other than User Content, as described below), and all related intellectual property rights, subject only to the limited license granted to you in Section 5.2.

5.2          Grant of License.

Subject to your full compliance with this Agreement and the Company’s Privacy Policy (located at https://www.finery.com/privacy), we hereby grant you a limited, non-exclusive, revocable, personal, and non-transferable license to:

5.2.1              Access and use the Application for your personal, non-commercial use on any Device; and

5.2.2              Access, download, and use the Service made available in or otherwise accessible through the Application on a Device, strictly in accordance with this Agreement.

5.3          License Restrictions; Prohibited Content.

 You agree that you will not in connection with your use of the Service:

5.3.1              Decompile, reverse engineer, disassemble, decode, attempt to access the source code, or sublicense the Service, or any portion of the Service;

5.3.2              Modify, translate, adapt, or create improvements or derivative works of the Application;

5.3.3              Alter, obscure, remove, or delete any trademarks or any trademark, copyright, patent, or other intellectual property or proprietary rights notices from the Service;

5.3.4              Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;

5.3.5              Download, republish, retransmit, reproduce, or otherwise use any content from the Service—such as headlines, news stories or information, image, video, audio, or other visual representation—except through the Service’s sharing features or those of the Social Networking Service through which you access the Service.

5.3.6              Employ misleading email addresses or mobile numbers or falsify information in any part of any communication related to the Service;

5.3.7              Engage in any activity which may compromise the stability or availability of the Service or use the Service to compromise the availability or stability of any third party site or service;

5.3.8              Use automated means, including spiders, robots, crawlers, or the like to download data from the Service or any related server or database;

5.3.9              Circumvent any security measures or any payment collection methods employed on or through the Service, or access or use the Service after the Company terminates or suspends your Account, this Agreement, or your access;

5.3.10          Bypass the measures used to prevent or restrict access to the Service, including but not limited to, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the Service’s content;

5.3.11          Abuse or harass any other user, member, or person;

5.3.12          Collect or store personally identifying information about other users for commercial or unlawful purposes;

5.3.13          Impersonate any person or entity, whether actual or fictitious, including anyone from Tête-à-Tête, Inc., Finery, or another user of the Company Services;

5.3.14          Misrepresent your affiliation with any third party;

5.3.15          Use the Service for any unsolicited advertising or promotions;

5.3.16          Upload post, email, otherwise transmit or post links to any content or material, or create an Account using any member or user name or email address in a manner that is unlawful; harmful; threatening; abusive; harassing; tortious; defamatory; vulgar; obscene; pornographic; libelous; invasive of privacy or publicity rights; hateful; or racially, sexually, ethnically, or otherwise objectionable;

5.3.17          Upload, post, email, otherwise transmit or post links to any content or material that infringes any patent, trademark, service mark, trade secret, copyright, or other proprietary rights of any person or that contributes to, induces, or facilitates this type of infringement.  For example, all trademarks, service marks and copyrights not owned by the Company that appear on the Services are the property of their respective owners.  Nothing contained in the Service grants, by implication, estoppel, or otherwise, or should be construed as granting, any license or right to use any of the trademarks, service marks or copyrighted materials displayed on the Service without written permission of the third-party rights holder;

5.3.18          Upload, post, email, otherwise transmit, or post links to any content or material that contains software viruses; worms; Trojan horses; time bombs; trap doors; any other computer code, files, or programs; or repetitive requests for information designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Service or any third party software, site, equipment, or service; or

5.3.19          Upload, post, email, otherwise transmit links to any content or material that violates any applicable law, statute, ordinance, or regulation, or which we deem improper in our sole discretion.

5.4          Grant of Rights to the Company.

5.4.1              Our provision of the Service to you depends on our ability to use information that you submit to us through the Service, such as passwords, log-in information, and other information.  By submitting such information to us you represent and warrant that you have the right to do so and that you understand that we have no obligation to compensate you in any way for the storage or use of such information.  We will only disclose this information if we determine that doing so is necessary (a) to respond to a request for customer service made by you; (b) to enforce the terms of this Agreement; (c) to comply with law, a subpoena, or other legal order; (d) to respond to claims or complaints by third parties; or (e) to protect the safety or rights of the Company, other users of the Service, or third parties.

5.4.2              By using the Service you authorize us to access, retrieve, and use your information that is maintained by certain third parties such as retailers and other online sellers on your behalf as your agent.  For the purposes of this Agreement, upon entering into this Agreement, you grant the Company a limited power of attorney, and appoint the Company as your attorney-in-fact and agent, to access third party websites and retrieve and use your information with the full power and authority to take any action that we determine is necessary to provide the Service.  You further acknowledge and agree that any such action taken by us will be done as your agent and not as an agent of or on behalf of any third party.

6.           User Content.

6.1          Submission of User Content.

 Some areas of the Service may allow you and other users to post content, comments, questions, and other information (“User Content”).  You are solely responsible for the User Content that you upload, publish, display, link to, or otherwise make available (hereinafter, “post”) on or through the Service.  You acknowledge and agree that your communications with other users via chats, conferences, bulletin boards, blogs, posts, and any other publicly accessible avenues of communication through the Service are public and not private communications.  Therefore, we strongly encourage you to use caution before disclosing any personal information about yourself in your public communications.

6.2          We reserve the right to refuse to transmit or post (and to disclose, block, or remove) any content or materials—including but not limited to, User Content, in whole or in part—that we in our discretion deem to violate this Agreement, our policies and procedures, or that we otherwise deem harmful to persons using the Service, regardless of whether the material or its dissemination is unlawful.  In addition, we may also take preventative steps including, but not limited to, limiting or filtering the number of posts sent or received by a user.

6.3          Your Representations and Warranties about Your User Content.

 By posting User Content on or through the Service, you represent and warrant that:

6.3.1              None of us, our customers, licensees, or business partners will be required to make any payments with respect to your User Content, including but not limited to, payments to you, your agents, your affiliates, your licensors, all third parties, or any persons who contributed to or appear in your User Content;

6.3.2              You have full right, power, and authority to post your User Content and have secured all third-party consents, licenses, and permissions necessary to post your User Content and grant to us the rights and licenses described below; and

6.3.3              Your User Content (A) is not defamatory; (B) does not infringe upon, misappropriate, or violate the rights of any third party including, but not limited to, any intellectual property rights, rights of publicity, or any other privacy or proprietary rights; and (C) does not violate any law, rule, regulation, or ordinance.

6.4          Rights in User Content.

 As between you and the Company, you retain all your ownership rights in your User Content.  However, by uploading, making available or submitting User Content, you grant us and our business partners and affiliates a royalty-free, perpetual, irrevocable, world-wide, assignable, and transferable right and license to quote, re-post, use, copy, reproduce, modify, create derivative works of, incorporate into other works, distribute, transmit, broadcast, communicate, publicly display, publicly perform, and otherwise exploit your User Content in any form or media now known or hereafter created, anywhere, and without any notice or compensation to you of any kind.  You hereby grant us all consents, rights, and clearances to enable us to use your User Content for these purposes.  Without limiting the foregoing, we may:

6.4.1              Host your User Content on our servers and those of our third party service providers that we may engage to host the Service and display your User Content, in whole or in part, alone or in compilation with content provided by third parties, to other users of the Service or Website;

6.4.2              Re-encode your User Content as needed to be compatible with different mobile devices;

6.4.3              Edit your User Content to ensure that it complies with our policies and guidelines; and

6.4.4              Use any trademarks, service marks, or trade names incorporated into your User Content and the likeness of any individual whose performance or image is contained in your User Content.

7.           Intellectual Property Rights.

7.1          General.

We take intellectual property rights seriously and will not tolerate alleged infringement brought to our attention.

7.2          We may, in our sole discretion, remove any User Content that appears to infringe on the intellectual property rights of others.  We may, in our sole discretion, terminate access to the Service by users who infringe or appear to infringe on the intellectual property rights of others.  Please also see the Company’s Repeat Infringer Policy described below in Section 7.3.

7.3          Digital Millennium Copyright Act.

If you are a copyright owner or an agent of a copyright owner and believe that any User Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing the following information in writing in an email with “DMCA Notice” in the subject line to help@finery.com.  The information you must include in your request is summarized below.  Please see 17 U.S.C 512(c)(3) for further detail:

§  Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works at that site;

§  Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

§  Information reasonably sufficient to permit the Company to contact you, such as an address, telephone number, and, if available, an electronic mail;

§  A statement 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; and

§  A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

§  A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

You acknowledge that if you fail to comply with all of the requirements of this Section 7.2, your DMCA notice may not be valid.

7.4          Repeat Infringer Policy.

If the Company has received up to three DMCA notices that allege you have posted infringing materials on the Service, the Company will automatically terminate your access to the Service.  The Company may also terminate access subject to Section 7.1 described above. 

8.           Your Interactions with Other Users.

YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICE.  YOU UNDERSTAND AND AGREE THAT WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO SCREEN OUR USERS, INQUIRE INTO THE BACKGROUNDS OF OUR USERS, AND ATTEMPT TO VERIFY THE STATEMENTS OF OUR USERS.  PLEASE ALSO USE CAUTION, COMMON SENSE, AND SAFETY WHEN USING THE SERVICE TO INTERACT WITH OTHER USERS. 

WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS OR TO TERMINATE OR BLOCK YOU AND OTHER USERS FOR VIOLATIONS OF THIS AGREEMENT.

9.           Release.

In the event that you have a dispute with one or more other users, you hereby release us, our parent, subsidiaries, and affiliated entities and ours and their shareholders, directors, officers, employees, agents, successors, and assigns from any and all claims, demands, damages (actual and consequential), losses, and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to any dispute.  If you are a California resident, you waive California Civil Code Section 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.”

10.        Advertising and Computational Resources.

As consideration for the license and rights granted to you under this Agreement, you agree that (A) the Company and its business partners have the right to provide ads, promotions, offers, and other information to you by email or other means of communication; and (B) we may allow the Service to utilize the processor, bandwidth, and storage hardware on your Devices for the purposes of facilitating (i) the communication and transmission of content and other data or features to you and other users of the Service; and (ii) the operation of the network(s) on which the Service runs.  You may opt-out of receiving promotional messages from the Company at any time by pressing the “unsubscribe” link in any of the emails containing the promotional messages from the Company.  We acknowledge the rights reserved for the Company under this Section 10 may not be exercised in any and all jurisdictions.  Accordingly, we will only deliver ads, promotions, and offers in consideration of the license and rights granted under this Agreement where we are permitted to do so in accordance with applicable law, and in all other jurisdictions we may attempt to secure your consent through an opt-in or otherwise.

11.        Third Party Content.

The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”).  You acknowledge and agree that the Company has no control over and is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, use of personal information, legality, decency, quality, or any other aspect thereof.  The Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials.  Third Party Materials, and links to Third Party Materials, are provided solely as a convenience to End Users; your access and use of them is entirely at your own risk and subject to the terms and conditions of use provided by the applicable third party.

12.        Application Updates.

12.1      The Company may from time to time and in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and new features (collectively, including related documentation, “Updates”).  Updates may also modify or delete in their entirety certain features and functionality.  You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.  Based on your Device settings, when your Device is connected to the internet, either (A) the Application will automatically download and install all available Updates, or (B) you may receive notice of or be prompted to download and install available Updates.  You will promptly download and install all Updates and acknowledge and agree that the Service or portions thereof may not properly operate if you fail to do so.  You further agree that all Updates will become part of the Service and subject to all terms and conditions of this Agreement.

12.2      Maintenance requirements or technical difficulties may result in temporary interruptions of the Service from time to time.  The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Service with or without notice.  The Company will not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of, or interruption to the Service. 

13.        Agreement Updates.

We may modify this Agreement from time to time.  We will notify you of material changes to this Agreement by posting the applicable changes on the Service at least thirty (30) days prior to the effective date of the changes.  Except as otherwise stated, amendments and changes will become effective thirty (30) days following their initial posting.  Please return to this page periodically to ensure familiarity with the most current version of this Agreement.  In addition, for users who have registered to use the Application and provided their email address to us, we will send notice of any material changes to this Agreement by email, and so it is important that you keep your email address with us current.  Your continued access or use of the Service following changes to this Agreement will constitute acceptance of the amendments and changes.  If you do not agree to any of the terms of this Agreement or any future Terms of Use Agreement provided by the Company, do not use, access, or continue to access the Service.  If you continue using the Service after the new terms take effect, you will be bound by the modified Terms of Use Agreement.

14.        Email Notices.

You agree that the Company will use your email address to send you messages related to the Service, in lieu of communication by postal mail or other methods, except where the Company is expressly required by applicable law to provide other notice.  The Company may also use your email address to send you other messages, such as changes to features of the Service, new applications, and special offers.  If you do not want to receive these messages, you may opt-out by using the unsubscribe option in the applicable email.  Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

15.        Geographic Restrictions.

The Service is deemed based and provisioned by the Company in the United States.  The Service is made available only to persons located in the United States or in such other jurisdictions that are expressly authorized by the Company.  You acknowledge that you might not be able to access all or some of the Service outside of the United States and that such access may not be legal by certain persons or in certain countries.  If you access the Service from outside the United States, you are responsible for compliance with local laws.

16.        Termination.

16.1      You may terminate this Agreement by cancelling your Account according to the procedures provided by the Application or the Website.  If you cancel your account you will no longer be able to access your account or use the Service as a registered user.

16.2      The Company reserves the right without liability to terminate or restrict this Agreement, your Account, or your access to or use of the Application or Service with or without notice for any reason.  In particular, this Agreement will immediately and automatically terminate without notice if you violate any of its terms and conditions.  You agree that the Company will not be liable to you or any third-party for any interference with or termination of your access to the Application or Service.  The Company will make all decisions regarding the termination of this Agreement or your Account in its sole discretion.  The Company is not required to disclose the reason for termination of this Agreement or your Account.

16.3      Upon termination all rights granted to you under this Agreement will terminate; you will cease all use of the Application and delete the Application from all Devices.  Sections 18, 20, 21, 22, and 23 will survive termination of this Agreement.

17.        Disclaimer of Warranties.

SUBJECT TO APPLICABLE LAWS AND REGULATIONS, THE COMPANY PROVIDES THE APPLICATION TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY—ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS—EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE APPLICATION.  THIS DISCLAIMER INCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WHETHER THEY MAY ARISE OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE ERROR FREE; OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

TO THE EXTENT APPLICABLE LAWS PROHIBIT TERMS OF USE FROM DISCLAIMING ANY IMPLIED WARRANTY, THE APPLICABLE IMPLIED WARRANTY WILL BE LIMITED TO THE MINIMUM WARRANTY AND WARRANTY PERIOD REQUIRED BY LAW.

18.        Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

(A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR

(B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THESE LIMITATIONS WILL APPLY WHETHER ANY DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR ANY OTHER LEGAL THEORY AND REGARDLESS OF WHETHER ANY DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF ANY DAMAGES.

19.        Force Majeure.

The Company will not be liable for any delay or failure in performance of the Service by an event beyond the Company’s control, without its fault or negligence, and that by its nature could not have been foreseen by the Company or—if it could have been foreseen—was unavoidable.

20.        Indemnification.

You agree to indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including attorneys’ fees) arising from or relating to your use or misuse of the Service or your breach of this Agreement.

21.        Arbitration Agreement and Waiver of Class Remedies.

21.1      Arbitration.

All claims arising out of or relating to this Agreement and the Service will be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of the Consumer Arbitration Rules of the AAA, excluding any rules or procedures governing or permitting class actions.  The arbitrator—and not any federal, state, or local court or agency—will have exclusive authority to resolve all disputes arising out of or relating to this Agreement.  The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity.  The arbitrator’s award will be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction.  The interpretation and enforcement of this Agreement will be subject to the Federal Arbitration Act.

THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879.  TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST.  IF WE ARE REQUIRED TO PAY THE ADDITIONAL COST OF THE FILING FEES, YOU SHOULD SUBMIT A REQUEST FOR PAYMENT OF FEES TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA.  THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY’S FEES IN CERTAIN CIRCUMSTANCES.

THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.  THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.

21.2      Class Action Waiver.

The Parties further agree that any arbitration will be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis.  If any court or arbitrator determines that the class action waiver set forth in this section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above will be deemed null and void in its entirety and the Parties will be deemed to have not agreed to arbitrate disputes.

21.3      Small Claims Exception.

Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

21.4      Thirty Day Right to Opt-out.

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in this section by sending written notice of your decision to opt-out to the following address:  305 West Broadway, #198 NY NY 10013, Attention:  Finery Customer Service.  The notice must be sent within thirty (30) days of registering to use the Service, otherwise you will be bound to arbitrate disputes in accordance with the terms set forth above.  If you opt-out of these arbitration provisions, then the Company also will not be bound by them.  In addition, if you elect to opt-out of these arbitration provisions, then the Company may terminate your use of the Service.

21.5      Exclusive Venue for Litigation. 

To the extent that the arbitration provisions set forth in Section 21.1 do not apply, the parties agree that any litigation between them will be filed exclusively in state or federal courts located in State of New York (except for small claims court actions which may be brought in the county where you reside).  The parties expressly consent to exclusive jurisdiction in the State of New York for any litigation other than small claims court actions.

21.6      Applicable Law.

You agree that federal laws and the laws of the State of New York, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and the Company.

22.        Claim Limitation.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE THAT CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

23.        Severability.

If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

24.        Waiver.

No delay or failure to take action under this Agreement will constitute any waiver by the Company of any provision of this Agreement.

25.        Assignment.

This Agreement is personal to you and may not be transferred, assigned, or delegated by you to any other person or entity.  Any attempt by you to assign, transfer, or delegate this Agreement will be null and void.

26.        Entire Agreement.

This Agreement and the Company’s Privacy Policy constitute the complete and exclusive agreement between the Company and you with respect to their subject matter and they supersede all prior oral or written understandings, communications, or agreements.  There are no third party beneficiaries of this Agreement or the Company’s Privacy Policy.