The effective date of this agreement is June 8, 2011.
This agreement contains the terms and conditions (the "Terms of Service") under which www.byrdie.com ("Byrdie", "we" or "us") offers you (the "user" or "you"), access to its website www.byrdie.com (the "Site") and Byrdie's Services (as defined below). Among other things, these Terms of Service describe the user's responsibilities and limit Byrdie's liability. Before using any of the Services, please read all these Terms of Service and the Site carefully. In the event of any conflict between these Terms of Service and any other provisions set forth in the Site, these Terms of Service will control.
2. CHANGES TO TERMS OF SERVICE Byrdie reserves the right, in its sole discretion, to amend these Terms of Service at any time upon posting the amended terms on the Site, or upon providing notice thereof by electronic or conventional mail or any other reasonable means. The amended terms shall automatically be effective. You should visit this page from time-to-time to review the then-current terms, because they are binding to you. The user's continued use of the Site and the Services following Byrdie's posting of any changes will constitute the user's acceptance of such changes.
3. BYRDIE SERVICES Byrdie's services, which are available on the Site help you find and browse information related to fashion and style, and allow you to submit i nformation to the Site, and enjoy a wide variety of other content for your own use and for viewing by other users (the "Services"). Your access to or use of these Services constitutes your acceptance of all the provisions of these Terms of Service. These Terms of Service apply to any user of the Site and Services, regardless of whether or not the user submits content for public display on the Site. The Site may also contain links to third party websites that are not owned or controlled by Byrdie. Byrdie has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. Byrdie will not censor or edit the content of any third-party websites. By using the Site, you expressly relieve Byrdie from any and all liability arising from your use of any third-party website.
4. ELIGIBILITY You must be 18 or over, or the legal age to form a binding contract in your jurisdiction if that age is over 18 years of age, to register as a Byrdie member or to use the Site and Services. If you are under the applicable age, you can use the Site under the supervision of your parent or guardian who has agreed to the Terms of Service. However, you must be 13 years or older to use the Site in compliance with the Children's Online Privacy Protection Act (COPPA). If you do not qualify, please do not use the Site or Services. The Site and Services are administered in the United States and are intended for US users. Any use outside of the United States is at the user's own risk and international users are responsible for compliance with local laws.
6. RIGHTS TO USE Subject to the Restrictions on Rights to Use in these Terms of Service, Byrdie hereby grants you permission to use the Site and Services, provided that
- your use of the Site as permitted is solely for personal, non-commercial use,
- you will not copy or distribute any part of the Site without Byrdie’s written permission,
- you will not alter or modify any parts of the Site, and
7. RESTRICTIONS ON RIGHTS TO USE You are authorized to use the Site and Services solely for your own use, and you agree not to act on behalf of a third-party or to allow a third-party to have access to your password in order to use the Site or Services. You are solely responsible for any and all activity that occurs on your account and you must keep your password secure. Furthermore, you shall not:
- modify, translate or reverse engineer any portion of the Site or Services;
- launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Site in a manner that sends more request messages to the Byrdie servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Byrdie grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Byrdie reserves the right to revoke these exceptions either generally or in specific cases;
- collect or harvest any personally identifiable information, including member names and User IDs, from the Site, nor to use the communication systems provided by the Site for any commercial solicitation purposes;
- solicit, for commercial purposes, any users of the Site with respect to their User Submissions (as defined below);
- remove any copyright, trademark or other proprietary rights notices contained in or on the Site;
- create user accounts by automated means or under false or fraudulent pretenses;
- create or transmit unwanted electronic communications such as "spam" to other users or members of the Site or otherwise interfere with other user's or member's enjoyment of the Site and/or Services;
- transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature;
- use the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene;
- copy or store any content offered on the Site for other than your own use; nor
- use any device, software or routine that interferes with the proper working of the Site and/or Services.
8. USER SUBMISSIONS We encourage you to submit to the Site a variety of content ("User Submissions"). You understand that whether or not such User Submissions are published, Byrdie does not guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that:
- you own or have the necessary licenses, rights, consents, and permissions to use and authorize Byrdie to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Site and these Terms of Service; and
- you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Site and these Terms of Service.
In connection with User Submissions, you further agree that you will not:
- submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Byrdie all of the license rights granted herein;
- publish falsehoods or misrepresentations that could damage Byrdie or any third party;
- submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
- post advertisements or solicitations of business; nor
- impersonate another person.
Byrdie does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Byrdie expressly disclaims any and all liability in connection with User Submissions. Byrdie reserves the right to remove User Submissions without prior notice. Byrdie will also terminate a User's access to the Site, if they are determined to be repeat offenders. Byrdie also reserves the right to decide whether User Submissions are appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. Byrdie may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion. You understand that when using the Site, you will be exposed to User Submissions from a variety of sources, and that Byrdie is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Byrdie with respect thereto, and agree to indemnify and hold Byrdie, its owners/operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Site.
9. INTELLECTUAL PROPERTY RIGHTS The content on the Site, with the exception of User Submissions, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Byrdie, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Site is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Byrdie reserves all rights not expressly granted in and to the Site and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Site for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Site or the Content therein. You retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to Byrdie, you hereby grant Byrdie a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Site and Byrdie's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Byrdie Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Site a non-exclusive license to access your User Submissions through the Site, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Site and under these Terms of Service.
10. COPYRIGHT INFRINGEMENT POLICY Byrdie does not permit copyright infringing activities and infringement of intellectual property rights on its Site, and Byrdie will remove any Content or User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. If you are a copyright owner or an agent thereof and believe that any Content or User Submission on the Site infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site 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 service provider 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.
Byrdie's designated Copyright Agent to receive notifications of claimed infringement is: Attention: Jordan Bromley, Manatt Phelps & Phillips, LLP, 11355 West Olympic Blvd. Los Angeles, CA 90064, email: firstname.lastname@example.org, fax: 310-914-5734. For clarity, only DMCA notices should go to the Copyright Agent. Any other feedback, comments, requests for technical support, and other communications should be directed to Byrdie customer service through email@example.com . You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid. It is Byrdie's policy to block access to or remove any material that it believes in good faith to be copyrighted material that has been illegally copied and distributed on the Site, and to remove repeat offenders from the Site and to deny them access to the Services.
11. DISCLAIMER. Byrdie contains strictly opinion-based information. The content of the Site is fact-checked to the best of our abilities but will, no doubt, contain errors of typing, spelling, intent, rumor, presumption, but never errors of style (we think). You might disagree with our choices and that's fine with us. Just don't expect us to always know what shoes should go with your new dress--even if it's a big event--because we can't swear we'll be right. Additionally, Byrdie has developed an affiliate program whereby apparel, jewelry and other fashion related companies sell products through links provided on the Site. In return, Byrdie is paid a varying percentage of the sales price of sales originating from the Site. Byrdie is committed editorial integrity and honesty and by no means does its affiliate program affect what we choose to cover, or what we say in our editorial coverage.
12. DISCLAIMER OF WARRANTIES BYRDIE'S SITE AND SERVICES AND ALL PRODUCTS AND SERVICES AVAILABLE THROUGH THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BYRDIE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) BYRDIE MAKES NO WARRANTIES, AND EXPRESSLY DISCLAIMS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (b) BYRDIE MAKES NO WARRANTIES THAT ITS SITE OR SERVICES, OR THE SERVICES AVAILABLE THROUGH THE SITE, WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OPERATE WITHOUT ERROR OR BE FREE OF SOFTWARE ERRORS OR COMPUTER VIRUSES. NOR DOES BYRDIE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICE; (c) BYRDIE DOES NOT WARRANT THAT THE PRODUCTS, SERVICES, DESCRIPTIONS, INFORMATION OR MATERIAL INCLUDED ON THE SITE WILL BE AS REPRESENTED BY THIRD-PARTY PROVIDERS, WILL BE FREE OF DEFECTS OR LAWFUL TO SELL, OR WILL BE SATISFACTORY TO YOU, OR THAT THIRD-PARTY PROVIDERS WILL PERFORM AS PROMISED; (d) BYRDIE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (e) BYRDIE EXPRESSLY DISCLAIMS ANY OBLIGATION, LIABILITY OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM ANY NEGLIGENCE OF BYRDIE. Some states, to the extent their law might be deemed to apply, might not permit the disclaimer of certain warranties, so the foregoing might not apply to you.
13. LIMITATION OF LIABILITY AND REMEDIES (a) UNDER NO CIRCUMSTANCES WILL BYRDIE OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THESE TERMS OF SERVICE OR BYRDIE'S SITE OR SERVICES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE. IN ANY CASE, BYRDIE'S LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED AND MAY NOT EXCEED THE AMOUNT CHARGED IN CONNECTION WITH A PARTICULAR TRANSACTION GIVING RISE TO LIABILITY OR, IF THE CLAIM DOES NOT RELATE TO A SPECIFIC TRANSACTION, ONE HUNDRED U.S. DOLLARS ($100.00). (b) Limited Liability with Respect to Products and Services Available Through the Site. UNDER NO CIRCUMSTANCES WILL BYRDIE OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM ANY PRODUCTS OR SERVICES AVAILABLE THROUGH BYRDIE'S SITE OR SERVICES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE. (c) Caveat. Some states, to the extent their law might be deemed to apply, might not allow the limitation of liability, so the foregoing limitations might not apply to you.
14. INDEMNIFICATION You agree to indemnify and hold Byrdie, and its affiliates, directors, officers, employees and representatives, harmless from and against any loss, cost, claim, damages, liability and expense, including reasonable attorneys' fees, and further including any injuries to third parties arising out of or relating to
- your breach of these terms of service,
- any fraud, manipulation, deception or misrepresentation by you,
- any wrongdoing, willful misconduct or negligence on your part with respect to your use of the Site or Services, and
- any violation of applicable federal or state laws or regulations.
15. NO AGENCY You and Byrdie are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms of Service.
16. ASSIGNMENT You may not assign these Terms of Service or any of your rights hereunder to a third person without first obtaining our express written consent.
17. TRADEMARKS (a) Byrdie and byrdie.COM, are trade or service marks of Byrdie. Use of the Site does not create any express or implied right to use such trade or service marks, and such trade or service marks may not be used in connection with any product or service that is not properly authorized by Byrdie, in any manner that is likely to cause confusion or in any manner that disparages or discredits Byrdie. (b) The use of any name, trademark, tradename, service mark, logo, symbol or other proprietary designation or marking of or belonging to any third party making products or services available on the Site should not be construed as an endorsement or sponsorship of the Site by any such third party, or as the participation by any such third party in the offering of goods or information through the Site.
19. GENERAL INFORMATION (a) Governing Law. THESE TERMS OF SERVICE, AND ALL ASPECTS OF THE RELATIONSHIP AND DEALINGS BETWEEN YOU AND BYRDIE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS, I.E., AS SUCH LAW IS APPLIED TO TERMS OF SERVICES, RELATIONSHIPS OR DEALINGS ENTERED INTO AND PERFORMED ENTIRELY WITHIN THE STATE OF CALIFORNIA. IF YOU ARE UNWILLING TO HAVE CALIFORNIA LAW APPLIED, DO NOT USE THE SITE. If any provision of these terms of service shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. (b) Complete Terms of Service. These Terms of Service and the materials expressly incorporated herein by reference constitute the full and complete Terms of Service between you and Byrdie. You and Byrdie have not relied upon any promises, representations, statements or undertaking other than those set forth herein. No oral modifications to these terms of service are permitted or valid. (c) JURISDICTION. ANY LAWSUIT THAT ARISES BETWEEN YOU AND BYRDIE IN CONNECTION WITH OR RELATED TO THESE TERMS OF SERVICE, THE SITE OR THE SERVICES SHALL BE BROUGHT EXCLUSIVELY IN EITHER THE STATE OR FEDERAL COURTS IN THE CITY AND COUNTY OF LOS ANGELES. YOU AND BYRDIE EXPRESSLY CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF SUCH COURTS. (d) Section Headings. The section titles of these terms of service are for convenience only and have no legal or contractual effect.
20. TERMINATION Byrdie may, in its sole discretion, terminate these Terms of Service and your use or access to the Site immediately and without notice for any reason.