Last Updated: March 22, 2022
Welcome to caratsandcake.com (the "Website"), a website operated by Carats and Cake, Inc. ("C&C"), the dedicated platform for newlyweds and couples to share and create their dream weddings.
PLEASE READ THIS TERMS OF USE AGREEMENT (THE "AGREEMENT") CAREFULLY. BY ACCESSING OR USING THIS WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE VIA THE WEBSITE (EACH A "SERVICE" AND COLLECTIVELY, THE "SERVICES"), CLICKING ON AN "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, SUBMITTING YOUR CONTENT, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH C&C, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER. THE TERM "YOU" REFERS TO THE INDIVIDUAL (REFERRED TO AS AN "INDIVIDUAL USER") OR, IF YOU ARE USING THE WEBSITE AND SERVICES ON BEHALF OF A LEGAL ENTITY, SUCH LEGAL ENTITY ("VENDOR USER"). COLLECTIVELY, INDIVIDUAL USERS AND VENDOR USERS ARE "USERS". IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
Your use of, and participation in, certain Services, including purchase of any products and services from third party suppliers and service providers, may be subject to additional terms and conditions, including, if applicable, warranty and return policies, and terms and conditions of C&C’s third party suppliers and service providers ("Supplemental Terms") and such Supplemental Terms will either be listed in these Terms of Use as set forth in Annex A hereto or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with such Supplemental Terms, the Supplemental Terms will control with respect to such Service. These Terms of Use and any applicable Supplemental Terms are referred to herein as the "Terms."
These Terms incorporate by reference the Privacy Policy posted on www.caratsandcake.com/privacy-policy. PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY C&C IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, C&C will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the "Last Updated" date at the top of these Terms of Use. If we make any material changes, and you have provided your e-mail address in connection with your use of the Services, we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to these Terms will be effective immediately for new Users of the Website or Services and will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing Users, provided that any material changes will be effective for Users who have a registered account on the Website (each, a “Registered User”) upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users. C&C may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services and C&C Materials. As between you and C&C, C&C owns all information and content available on the Website and in the Services (as these terms are defined below) (collectively, the "C&C Materials"). Subject to these Terms, C&C grants (i) Individual Users a limited license to reproduce portions of C&C Materials for the sole purpose of using the Services for your personal or non-commercial purposes and (ii) Vendor Users a limited license to reproduce portions of C&C Materials for the sole purpose of using the Services for Vendor's internal business purposes. Unless otherwise specified by C&C in a separate license, your right to use any C&C Materials that you access or download through the Website or the Services is subject to the Terms.
1.1 Updates. You understand that the Website and the Services are evolving. As a result, C&C may require you to accept updates to the Website or the Services. You acknowledge and agree that C&C may update the Website and/or the Services with or without notifying you. You may need to update third party software from time to time in order to receive the Services or use the Website.
1.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion of the Website, including any C&C Materials other than as expressly set forth herein, (b) you will not frame or utilize framing techniques to enclose any trademark, logo, or other C&C Materials (including images, text, page layout or form) of C&C; (c) you will not use any metatags or other "hidden text" using C&C's name or trademarks; (d) you will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of C&C Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you will not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Website; (f) you will not access C&C Materials in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of C&C Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you will not remove or destroy any copyright notices or other proprietary markings contained on or in C&C Materials. Any future release, update or other addition to C&C Materials will be subject to these Terms. C&C, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Website or the Services terminates the licenses granted by C&C pursuant to the Terms.
1.3 Third Party Materials. As a part of C&C Materials, you may have access to materials that are hosted by another party. You agree that C&C is not required to monitor such materials and that you access these materials at your own risk.
2. Registration.
2.1 Registering your Account. In order to access certain features of the Website and the Services you may be required to become a Registered User. For purposes of these Terms, a "Registered User" is a User who has registered an account on the Website ("Account"), has a valid account on the social networking service ("SNS") through which the User has connected to the Services (each such account, a "Third Party Account"), or has an account with the applications provider for the User's mobile device.
2.2 Access through an SNS. If you access the Services through an SNS as part of the functionality of the Website and the Services, you may link your Account with Third Party Accounts, by either (a) providing your third Party Account login information to C&C through the Website or the Services; or (b) allowing C&C to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to C&C and/or grant C&C access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating C&C to pay any fees or making C&C subject to any usage limitations imposed by such third party service providers. By granting C&C access to any Third Party Accounts, you understand that C&C will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account ("SNS Content") so that it is available on and through the Website and Services via your Account and your profile page. Unless otherwise specified in the Terms, all SNS Content will be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Website and Services. Please note that if a Third Party Account or associated service becomes unavailable or C&C's access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Website and Services. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the "Settings" section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS.
2.3 Registration Data. In registering for the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Services' registration form (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you will monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of C&C Materials or the Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or C&C has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, C&C has the right to suspend or terminate your Account and refuse any and all current or future use of C&C Materials and/or the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you will not have more than one Account per platform or SNS at any given time. C&C reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights. You agree not to create an Account or use C&C Materials and/or the Services if you have been previously removed by C&C, or if you have been previously banned from the Services.
2.4 Activities Under your Account. You are responsible for all activities that occur under your Account. You are responsible for any use of your credit card or other payment instrument (e.g., Paypal) by minors. You may not share your Account or password with anyone, and you agree to (a) notify C&C immediately of any unauthorized use of your password or any other breach of security; and (b) exit from your Account at the end of each session.
3. Responsibility for Content.
3.1 Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Website or the Services, whether publicly posted or privately transmitted, including C&C Materials ("Content"), are the sole responsibility of the party from whom such Content originated. This means that you, and not C&C, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ("Make Available") through the Services or the Website, including SNS Content ("Your Content"), and other Users of the Services, and not C&C, are similarly responsible for all Content they Make Available through the Services or the Website ("User Content"). You acknowledge and agree that C&C is entitled to use any such information gathered as set forth in the Privacy Policy.
3.2 No Obligation to Pre-Screen Content. You acknowledge that C&C has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although C&C reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. Without limiting the foregoing, C&C will have the right to remove any Content that violates the Terms or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by C&C in writing elsewhere, C&C has no obligation to store any of Your Content that you Make Available on the Website or via the Services. C&C has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that C&C retains the right to create reasonable limits on C&C's use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by C&C in its sole discretion.
4. Ownership.
4.1 C&C Materials. Except with respect to Your Content, you agree that, as between you and C&C, C&C owns all rights, title and interest in the Website, the Services, and C&C Materials. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or C&C Materials.
4.2 Trademarks. CARATS & CAKE™, Create and Share Dream Weddings™ and other related graphics, logos, service marks and trade names used on the Website, in C&C Materials or in connection with the Services are the trademarks of C&C and may not be used without permission in connection with any third party products or services. Other trademarks, service marks and trade names that may appear on the Website, in C&C Materials or in connection with the Services are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Website or the Services.
4.4 Your Content. C&C does not claim ownership of Your Content. When you as a User post or publish Your Content on or in the Website or the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content, and to allow others to do so as well.
4.5 License to Your Content. By submitting Your Content to any public area of the Website or the Services, you grant C&C a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, nonexclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. You acknowledge that we may publish, and you authorize us to publish, your first name, last name (or first initial of your last name) and the state in which you live in association with any Content that you post to public areas of the Website or the Services. You also warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly granted to you the right to grant the license stated above. You agree that you, not C&C, are responsible for all of Your Content that you Make Available on or in the Website, or the Services, whether publicly posted or privately transmitted.
4.6 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you will have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of C&C.
4.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to C&C through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that C&C has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to C&C a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Website and the Services.
5. User Conduct. As a condition of use, you agree not to use the Website, the Services or C&C Material for any purpose that is prohibited by these Terms or by applicable law. You will not (and will not permit any third party) either (a) to take any action or (b) Make Available any Content on or through the Website and the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without C&C's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of C&C; or (vi) to attempt or engage in, any potentially harmful acts that are directed against the Website or the Services, including but not limited to violating or attempting to violate any security features of the Website or Services, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the Website or Services, introducing viruses, worms, or similar harmful code into the Website, Services or C&C Materials, or interfering or attempting to interfere with use of the Website or Services by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the Website or the Services.
6. Investigations. Although C&C does not generally monitor user activity occurring in connection with the Website, Services, C&C Materials, or Content, if C&C becomes aware of any possible violations by you of any provision of the Terms, C&C reserves the right to investigate such violations, and C&C may, at its sole discretion, immediately terminate your license to use the Website, Services, or C&C Materials, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Users.
7.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that C&C reserves the right, but has no obligation, to intercede in such disputes.
7.2 Content Provided by Other Users. The Website, Services, and C&C Materials may contain User Content provided by other Users. C&C is not responsible for and does not control User Content. C&C has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk. Your interactions with other Users are solely between you and the other User and we are under no obligation to become involved. You agree that C&C will not be responsible for any liability incurred as the result of such interactions.
7.3 Release. If you have a dispute with one or more Users, you release C&C and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the "C&C Parties") 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."
8. Third Party Services.
8.1 Third-Party Products and Services. The Website, Services, and C&C Materials can be used to facilitate the purchase and sale of services or merchandise through the Website from other persons not affiliated with C&C ("Seller(s)"). All matters concerning the merchandise and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller. C&C makes no warranties or representations whatsoever with regard to any goods or services provided by Sellers. You will not consider C&C, nor will C&C be construed as a party to such transactions, whether or not C&C may have received some form of revenue or other remuneration in connection with the transaction or be liable for any costs or damages arising out of, either directly or indirectly, to you or any other person involved or related to the transaction.
8.2 Third-Party Websites & Ads. The Website, Services, and C&C Materials may contain links to third party websites ("Third Party Websites") and advertisements for third parties (collectively, "Third Party Websites & Ads"). When you click on a link to a Third Party Website or Ad, we will not warn you that you have left our Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of C&C. C&C is not responsible for any Third Party Websites & Ads. C&C provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. Premium Service Fees and Purchase Terms. If you are a Vendor purchasing Premium Services, the provisions set forth below will apply. "Premium Services" are those services identified by C&C as a Premium Service or any other service for which you are required to pay a fee.
9.1 Payment. You agree to pay all fees or charges to your Account, including for Premium Services in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide C&C with valid credit card (Visa, MasterCard, or any other issuer accepted by us) or bank account details ("Payment Provider"), or purchase order information as a condition to signing up for the Premium Services. Your Payment Provider agreement governs your use of the designated credit card or bank account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing C&C with your credit card number or bank account and associated payment information, you agree that C&C is authorized to immediately charge your credit card number or bank account for all fees and charges due and payable to C&C hereunder and that no additional notice or consent is required. You agree to immediately notify C&C of any change in your billing address or the credit card or bank account used for payment hereunder. C&C reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.
9.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Premium Services (each, a "Premium Service Subscription Fee") at the time you request or renew such services. Except as set forth in these Terms, all fees for the Premium Services are non-refundable. No contract will exist between you and C&C for the Premium Services until C&C accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
9.3 Taxes. C&C's fees are net of any applicable sales or use tax. If any Premium Services, or payments for any goods or services, under this Agreement are subject to sales or use tax in any jurisdiction, Customer will be responsible for payment of such sales tax, and any related penalties or interest and will indemnify C&C for any liability or expense C&C may incur in connection with such sales or use tax.
9.4 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to: vendorsupport@caratsandcake.com.
10. Indemnification. You agree to indemnify and hold C&C Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Website or the Services; (c) your violation of the Terms; (d) your violation of any rights of another party, or (e) your violation of any applicable laws, rules or regulations. C&C reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with C&C in asserting any available defenses. You agree that the provisions in this section will survive any termination of your use of the Website or Services.
11. Disclaimer of Warranties.
11.1 AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK, AND THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE C&C PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) C&C PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE WEBSITE OR THE SERVICES WILL BE CORRECTED.
(b) ANY CONTENT OR C&C MATERIALS DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE WEBSITE OR THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE OR THE SERVICES, ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. C&C MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM C&C OR THROUGH THE WEBSITE OR C&C MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, C&C MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT C&C'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE C&C PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE C&C PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. C&C MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. C&C MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE WEBSITE OR THE SERVICES.
11.3 NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WEBSITE AND THE SERVICES. YOU UNDERSTAND THAT C&C DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE WEBSITE OR THE SERVICES.
12. Limitation of Liability.
12.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL THE C&C PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE SERVICES OR THE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT C&C HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WEBSITE OR THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WEBSITE OR THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE OR THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE WEBSITE OR THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
12.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE C&C PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY C&C AS A RESULT OF YOUR USE OF THE WEBSITE AND THE SERVICES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT CLAIM. IF YOU HAVE NOT PAID C&C ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, C&C'S SOLE AND EXCLUSIVE LIABILITY WILL BE LIMITED TO FIFTY DOLLARS ($50).
12.3 Information Verification. C&C Parties may use various ways of verifying information that Users have provided. However, none of those ways are perfect, and you agree that C&C and its suppliers will have no liability to you arising from any incorrectly verified information.
12.4 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN C&C AND YOU.
12.5 EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
13. Procedure for Making Claims of Copyright Infringement. It is C&C's policy to terminate membership privileges of any User who repeatedly commits copyright infringement upon prompt notification to C&C by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website, or the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Website or Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for C&C's Copyright Agent for notice of claims of copyright infringement is as follows: Copyright Agent, Carats and Cake, Inc., 175 Varick Street, New York, NY 10014.
14. Term and Termination.
14.1 Term. These Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Website or any Services, unless terminated earlier in accordance with these Terms.
14.2 Termination of Services by C&C. Except as otherwise stated on the Website or through the Services at the time you request the applicable Premium Service, the Premium Service Subscription Fee for any Premium Service will be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of this Agreement, or if C&C is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), C&C has the right to suspend or terminate any Premium Services provided to you. You agree that all terminations for cause will be made in C&C's sole discretion and that C&C will not be liable to you or any third party for any termination of your Account or use of the Website or Services.
14.3 Termination of Services by You. If you want to terminate any Services provided by C&C, you may do so by notifying C&C at any time. Your notice should be sent, in writing, to C&C's address set forth below.
14.4 Effect of Termination. Termination of any Service may include removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of your password and all related information, files and Content associated with or inside your Account (or any part therof) or your use of the Website or Services, including Your Content. Upon termination of any Service, your right to use such Service will terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. C&C will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of these Terms which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15. Remedies.
15.1 Violations. If C&C becomes aware of any possible violations by you of the Terms, C&C reserves the right to investigate such violations. If, as a result of the investigation, C&C believes that criminal activity has occurred, C&C reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. C&C is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Website or in the Services, including Your Content, in C&C's possession in connection with your use of the Website or the Services, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms; (c) respond to any claims that Your Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of C&C, its Users or the public, and all enforcement or other government officials, as C&C in its sole discretion believes to be necessary or appropriate.
15.2 Breach. In the event that C&C determines, in its sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Website or Services, C&C reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to C&C) that you have violated these Terms;
(b) Delete any of Your Content provided by you or your agent(s) to the Website or the Services;
(c) Discontinue your use of the Website and/or any Services or C&C community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which C&C deems to be appropriate.
15.3 No Subsequent Use. If your use or ability to access the Website or the Services, or any other C&C community is discontinued by C&C due to your violation of any portion of these Terms or for conduct otherwise inappropriate for the community, then you agree that you will not attempt to use or access the Website or the Services or any other C&C community through use of a different name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those materials or Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, C&C reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. International Users.
This Website can be accessed from countries around the world and may contain references to services and Content that are not available in your country. These references do not imply that C&C intends to announce such services or Content in your country. The Website and Services are controlled and offered by C&C from its facilities in the United States of America. C&C makes no representations that the Website or the Services are appropriate or available for use in other locations. Those who access or use the Website or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
17. General Provisions.
17.1 Electronic Communications. The communications between you and C&C use electronic means, whether you visit the Website or send C&C e-mails, or whether C&C posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from C&C in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that C&C provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Release. You hereby release the C&C Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third party websites of any kind arising in connection with or as a result of your breach of these Terms or your use of the Website or the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "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.
17.3 Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without C&C's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. C&C may assign these Terms, including all rights granted to C&C with respect to Your Content and Feedback, at any time without your prior written consent.
17.4 Force Majeure. C&C will 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, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes, pandemics or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Dispute Resolution. If you believe that C&C has not adhered to these Terms, please contact C&C by emailing us at legal@caratsandcake.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
17.6 Choice of Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which C&C's principal place of business is located for any lawsuit filed against you by C&C arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
17.7 Limitations Period. YOU AND C&C AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE WEBSITE, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
17.8 Arbitration.
(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration will be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party will not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (2) all arbitration proceedings will be held in English; (3) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party will bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and will pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, C&C may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from New York law, including the laws governing what can legally be sold, bought, exported, offered or imported. You will always comply with all the international and domestic laws, ordinances, regulations and statutes that re applicable to your use of the Website and the Services.
(b) Any other Dispute (including whether the claims asserted are arbitrable) will be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the "Rules") and will be administered by the New York, New York office of JAMS (the "Administrator"). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be New York, New York. The Dispute(s) will be submitted to a single arbitrator ("Arbitrator") chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator will provide such list to the parties 10 days after a request by either party. Should the parties be unable to agree on a choice of an Arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party will bear its own attorney's fees, costs, and disbursements arising out of the arbitration, and will pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator will be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorney's fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also will be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award will be final and binding upon the parties without appeal or review except as permitted by New York law or United States Federal law.
(c) By using the Website or the Services in any manner, you agree to the above arbitration provision. IN DOING SO, YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND ANY CLAIMS BETWEEN YOU AND C&C (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL-CLAIMS COURT). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the Arbitrator. The Arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the Arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
17.9 Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English.
17.10 Notice. Where C&C requires that you provide an e-mail address, you are responsible for providing C&C with your most current e-mail address. In the event that the last e-mail address you provided to C&C is not valid, or for any reason is not capable of delivering to you any notices required/permitted by these Terms, C&C's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Any notice that you are required to provide to C&C under these Terms, you may give at the following address: legal@caratsandcake.com or Carats and Cake, Inc., 175 Varick Street, New York, NY 10014, Attn: Legal Department. Such notice will be deemed given when received by C&C.
17.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.12 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
17.13 Export Control. You may not use, export, import, or transfer C&C Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained C&C Materials, and any other applicable laws. In particular, but without limitation, C&C Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using C&C Materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use C&C Materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by C&C are subject to the export control laws and regulations of the United States. You will comply with these laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer C&C products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.14 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.
17.15 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
18. International Provisions. The following provisions will apply only if you are located in the countries listed below.
18.1 United Kingdom. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
18.2 Germany. Notwithstanding anything to the contrary in Section 12, C&C is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
