LAST UPDATED: July 21, 2010
This Agreement is between you ("you") and Wacoal Direct Corp. ("we," "us") concerning your use of the website owned or operated by us from which you are accessing this Agreement (including all content and services offered on or through the Site, and together with any successor site(s), the "Site").
- Acceptance of Terms. By using the Site, you agree to the terms of this Agreement and to any additional rules and guidelines that we post on the Site. We may make changes to this Agreement from time to time; we may notify you of such changes by any reasonable means, including by posting the revised version of this Agreement on the Site. You can determine when we last changed this Agreement by referring to the "LAST UPDATED" legend above. Your use of the Site following changes to this Agreement will constitute your acceptance of those changes; provided, however, any material change to this Agreement shall not apply retroactively to any claim or dispute between you and us in connection with this Agreement that arose prior to the "LAST UPDATED" date applicable to that version of this Agreement in which we included such material change.
- Changes to the Site. We may, at any time and from time to time, in our sole discretion, temporarily or permanently, in whole or in part, modify or discontinue all or part of the Site; charge, modify or waive fees required to access or use the Site; or offer opportunities to some or all Site users. You agree that neither we nor any of our affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any service, content, feature, product or price offered through the Site. Your continued use of the Site after such changes will indicate your acceptance of such changes.
- Jurisdiction. The Site is controlled and/or operated from the United States, and is not intended to subject us to non-U.S. jurisdiction or laws, except as otherwise expressly stated in this Agreement. The Site may not be appropriate or available for use in some jurisdictions outside of the United States. If you access the Site, you do so at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit the Sitecs availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
- Rules of Conduct.
- In using the Site, you agree to obey the law, respect the rights of others and avoid objectionable, defamatory or disruptive behavior. In addition, you will comply with the following "Rules of Conduct" as updated from time to time by us. You will not:
- Post, transmit, or otherwise make available, through or in connection with the Site:
- Anything that is or may be (a) threatening, harassing, degrading, hateful or intimidating; (b) defamatory; (c) fraudulent or tortious; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express prior consent of the owner of such right.
- publicity or other proprietary right without the express prior consent of the owner of such right.
- Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; that promotes gambling; or that encourages or provides instructional information about illegal activities or activities such as "hacking," "cracking" or "phreaking."
- Any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
- Any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letter," "pyramid scheme" or investment opportunity, or any other form of solicitation.
- Any material non-public information about a company without the proper authorization to do so.
- Use the Site for any fraudulent or unlawful purpose.
- Use the Site to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the Site.
- Impersonate any person or entity, including any of our (or our affiliates) representatives; falsely state or otherwise misrepresent your affiliation with any person or entity; or express or imply that we endorse any statement or posting you make.
- Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks.
- Restrict or inhibit any other person from using the Site (including by hacking or defacing any portion of the Site).
- Use the Site to advertise or offer to sell or buy any goods or services without our express prior written consent.
- Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site.
- Except as expressly permitted by applicable law, modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Site.
- Remove any copyright, trademark or other proprietary rights notice from the Site or materials originating from the Site.
- Frame or mirror any part of the Site without our express prior written consent.
- Create a database by systematically downloading and storing all or any Site content.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the Site, without our express prior, written consent.
We may terminate your use of the Site for any conduct that we consider to be inappropriate, or for your breach of this Agreement, including the Rules of Conduct (including, without limitation, if you repeatedly engage in copyright infringement via or in connection with the Site).
- Registration. You may need to register to use any part(s) of the Site. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you are responsible for any use of your user name and password, and you agree to promptly notify us of any confidentiality breach or unauthorized use of your user name and password, or your Site account.
- General. The Site may contain areas where you can post information and materials, including, without limitation, text, images, photographs, graphics, music, videos, audiovisual works, data, files, links, product reviews and other materials (each, a "Submission"). For purposes of clarity, you retain ownership of any Submissions that you post, subject to the terms and conditions of this Agreement (including the license grant herein).
- License Grant. For each Submission that you post, you hereby grant to us a world-wide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable, and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to: (i) reproduce, distribute, transmit, communicate to the public, perform and display (publicly or otherwise), edit, modify, adapt, create derivative works from and otherwise use such Submission, in any format or media now known or hereafter developed, on or in connection with the Site or any of our services or products (including, without limitation, any websites); (ii) exercise all trademark, publicity and other proprietary rights with regard to such Submission; (iii) use your name, photograph, portrait, picture, voice, likeness and biographical information in connection with your Submission for advertising or other promotional purposes related to the Site or any of our services or products; and (iv) use your Submission (including the contents thereof) for any advertising or other promotional purposes related to the Site or any of our services or products. IF YOU DO NOT WISH TO GRANT THE RIGHTS GRANTED IN THIS SECTION 7, PLEASE DO NOT POST ANY SUBMISSIONS ON THE SITE.
- Disclaimers. It is possible that Site visitors will post information or materials on the Site that are wrong or misleading or that otherwise violate this Agreement. We, our affiliates and our and their employees, officers, directors, agents, representatives, licensors, suppliers and service providers (collectively with us, the "Wacoal Entities") do not endorse and are not responsible for any information or materials made available through the Site or your use of such information or materials. All Submissions will be deemed to be non-confidential and may be used by us (i) on an unrestricted basis and (ii) without attribution to you or any third party. We reserve the right, in our sole discretion and at any time, to set limits on the number and size of any Submissions that may be posted on the Site or the amount of storage space available for Submissions. You hereby acknowledge and agree that (i) you have received good and valuable consideration in exchange for the rights granted by you hereunder in and to any Submission that you post; and (ii) you are not entitled to any further compensation for any use or other exploitation of such Submission by us or any other party (including, without limitation, the Wacoal Entities).
- Representations and Warranties. You hereby represent and warrant that: (i) you have the legal right and authority to enter into this Agreement; (ii) you solely own, or otherwise have the full right and permission to exploit, all of the rights in, to, and under any Submission that you post and to grant the rights and licenses set forth herein, and with respect to any third party materials that appear in or are otherwise incorporated or embodied any Submission that you post, you have obtained express, written clearances from all owners of and rights holders in such third party materials as necessary to grant the rights and licenses set forth herein; (iii) you have obtained the written consent, release, and/or permission of every identifiable individual who appears in any Submission that you post, to use such individuals name and likeness for purposes of using and otherwise exploiting such Submission(s) in the manner contemplated by Agreement, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individuals parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request); (iv) any Submission that you post, and the use thereof by us and our designees (including, without limitation, the Wacoal Entities), do not and shall not infringe upon or violate any patent, copyright, trademark, trade secret, or other intellectual property rights or other rights of any third party; (v) any Submission that you post is not confidential and does not contain any confidential information; and (vi) in creating, preparing and posting any Submission, you (A) have complied and will comply in all respects with all applicable laws, rules (including, without limitation, our Rules of Conduct), and regulations and (B) have not violated and will not violate any understanding by which you are explicitly or implicitly bound (including without limitation any agreement with any third party). If you do post a Submission that contains the likeness of an identifiable individual, we strongly encourage you not to include any identifying information (such as the individuals name or address) within such Submission.
- Waiver; Further Assurances. To the extent permitted under applicable law, you agree to forever release and discharge each of the Wacoal Entities from, waive and covenant not to initiate, file, maintain, or proceed upon any suit, claim, demand, or cause of action against each of the Wacoal Entities with respect to, any and all claims, demands, actions, losses, costs, damages, liabilities, judgments, settlements and expenses (including, without limitation, reasonable attorneysc fees) that relate in any way to this Agreement and/or the use of any Submission in a manner consistent with the rights granted under this Agreement, including, without limitation, any claim for idea misappropriation. Additionally, to the extent permitted under applicable law, you hereby waive any and all rights that you may have under laws worldwide that concern "moral rights," "droit moral" or similar rights in connection with any Submission that you post (and you hereby represent and warrant that you have obtained clear, express written waivers from any applicable third parties with respect to any and all rights that such third parties may have under such laws in connection with any Submission that you post). At any time upon our request, you shall: (i) take or cause to be taken all such actions as we may reasonably deem necessary or desirable in order for us to obtain the full benefits of this Agreement and any licenses granted by you hereunder, and (ii) execute a non-electronic hard copy of this Agreement.
- No Obligation to Use. For the purpose of clarification, it shall be in our sole discretion whether or not to exercise any right granted to us under this Agreement, and we shall have no obligation to use or otherwise exploit any Submission.
- Unsolicited Submissions. Notwithstanding anything to the contrary in this Agreement, we and our Affiliates do not accept, invite or consider unsolicited submissions of ideas, proposals or suggestions ("Unsolicited Submissions"), whether related to the Site, our Products or otherwise. We do not treat Unsolicited Submissions as confidential, and any Unsolicited Submission will become our sole property. The Wacoal Entities have no obligations with respect to Unsolicited Submissions and may use them for any purpose whatsoever without compensation to you or any other person.
- Purchases. If you wish to purchase any products ("Products") made available in connection with the Site (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction, including without limitation your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
- Products. Descriptions and images of, and references to, third-party products or services available in connection with the Site do not imply our endorsement of such third-party products or services. All descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on this Site, are subject to change at any time without notice. We undertake reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products or services on this Site at a particular time does not imply or warrant that these Products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Site. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all Transaction(s); and/or to refuse to provide any user with any Product or service. Refunds and exchanges will be subject to our refund and exchange policies then in effect. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
- Accuracy of Information. We attempt to ensure that information that we post on this Site is complete, accurate and current. Despite our efforts, the information on this Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currency of any information on this Site. For example, Products included on this Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Site. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm receipt of orders by email, an email order receipt confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Product or service. We reserve the right, without prior notice, to limit the order quantity on any Product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
- Our Proprietary Rights. The information and materials made available through the Site are and shall remain the property of the Wacoal Entities, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. Subject to your compliance with this Agreement, and solely for so long as you are permitted by us to access and use the Site, you may view one (1) copy of any content on the Site to which we provide you access hereunder on any single computer solely for your personal, non-commercial home use, provided that you keep intact all copyright and other proprietary notices. Except as expressly authorized in advance by us in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Site or any materials made available through the Site.
- Links and Feeds. The Site may provide links to or feeds from other websites and online resources. The Wacoal Entities are not responsible for and do not endorse such external sites or resources. Other sites may link to the Site with or without our authorization, and we may block any links to or from the Site. YOUR ACCESS TO AND USE OF THIRD PARTY WEBSITES, CONTENT AND RESOURCES IS AT YOUR OWN RISK.
- Limitations of Liability and Disclaimers. THE SITE AND ALL GOODS, SERVICES, PRODUCTS, CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SITE ARE PROVIDED TO YOU "AS IS" WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND EACH OF THE WACOAL ENTITIES DISCLAIMS ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE SITE AND ALL GOODS, SERVICES, PRODUCTS, CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SITE, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SITE (OR ANY PART THEREOF), OR ANY GOODS, SERVICES, PRODUCTS, CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SITE IS OR WILL BE ACCURATE, COMPLETE, ERROR-FREE, OR COMPATIBLE WITH ANY PARTICULAR SOFTWARE OR HARDWARE. FURTHER, WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY SOFTWARE, HARDWARE, EQUIPMENT OR OTHER DEVICE OR SYSTEM USING THE SITE OR ANY GOODS, SERVICES, PRODUCTS, CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SITE WILL FUNCTION IN ANY MANNER. YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE OR SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO USE THE SITE AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, EQUIPMENT, DEVICES, SYSTEMS OR SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE SITE AND ANY GOODS, SERVICES, PRODUCTS, CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SITE. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SITE.
- Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless each of the Wacoal Entities from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Site (including all Transactions); (b) any violation of this Agreement by you; (c) any use or other exploitation, or failure or omission to use or otherwise exploit, any Submission (including any portion thereof) that you post; or (d) any claim that your Submission or any use or exploitation thereof caused damage to or infringed upon or violated the rights of a third party, including without limitation past, present or future infringement, misappropriation, libel, defamation, invasion of privacy or right of publicity or violation of rights related to the foregoing.
- Termination. This Agreement is effective until terminated. We may, in our sole discretion, terminate your access to or use of the Site, at any time and for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the Site will immediately cease, and you agree that we may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that any termination of your access to or use of the Site may be effected without prior notice, though we reserve the right to provide notice prior to termination where such notice may be required by applicable law. You agree that the Wacoal Entities shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 3, 7-10, 15-20, 22-24 and 26 shall survive any expiration or termination of this Agreement.
- Governing Law; Dispute Resolution. You hereby agree that this Agreement, and any claim or dispute arising under or in connection with this Agreement or your use of the Site, is governed by and shall be construed in accordance with the laws of the State of New York, U.S.A., without regard to its principles of conflicts of law, and you consent to the exclusive jurisdiction of the federal and state courts located in New York County, NY, U.S.A., and waive any jurisdictional, venue or inconvenient forum objections thereto. You further agree that the United Nations Convention on the International Sale of Goods will not apply to this Agreement.
- Filtering. Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at: http://kids.getnetwise.org/ and http://onguardonline.gov/. Please note that we do not endorse any of the products or services listed at these sites.
- Information or Complaints. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please feel free to contact us via e-mail at email@example.com. E-mail communications are not necessarily secure, so please do not include credit card information or other sensitive information in any e-mail to us. You may also contact us by phone at 1800-WACOAL-0 (922-6250) or by writing to us at Customer Service, 1 Wacoal Plaza, Lyndhurst, NJ 07071. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send us a notice requesting that we remove the material or disable access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov for details. Notices and counter-notices should be sent to:
- Ability to Enter Into This Agreement. By using the Site, you affirm that you are of legal age to enter into this Agreement or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement.
- Contact Us. If you have any questions regarding the meaning or application of this Agreement, please direct such questions to firstname.lastname@example.org. E-mail communications are not necessarily secure, so please do not include credit card information or other sensitive information in any e-mail to us.
Our trade names, trademarks and service marks include without limitation, WACOAL, B.TEMPTD, BRAS OF SUMMER, SUPPORT THE GIRLS, HOPE ON A HANGER, iBRA, B-SMOOTH, BODY SUEDE, CUSTOM CONTOURS, SLIMLINE, WACOAL LUXE and NO PEEK, and any associated logos. All trademarks and service marks on the Site not owned by us are the property of their respective owners. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting any license or right to use any trade names, trademarks or service marks without express prior written consent of the owner.
NONE OF THE WACOAL ENTITIES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND in connection with the site, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, THE WACOAL ENTITIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY GOODS, SERVICES, PRODUCTS, CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SITE BY ANY OF THE WACOAL ENTITIES OR BY ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE. THE MAXIMUM LIABILITY OF THE WACOAL ENTITIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO US TO ACCESS AND USE THE SITE.
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
While we try to maintain the security of the Site, we do not guarantee that the Site will be secure or that any use of the Site will be uninterrupted. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any unauthorized third party alterations to the Site, contact us at email@example.com with a description of the material(s) at issue and the URL or location of such materials.
Jessica Bennett, One Wacoal Plaza, Lyndhurst, NJ 07071
We suggest that you consult your legal advisor before filing a notice or counter-notice.
All materials © 2005-2010, Wacoal America Inc. unless otherwise noted. All rights reserved.