TERMS & CONDITIONS OF USE
Welcome to the Colette Malouf website, operated by Colette Malouf, Inc. (“Malouf” “we,” or “our”) and located at http://www.colettemalouf.com/ (the “Site”). The Site is provided as a service to our customers. The following terms and conditions (“Terms”) govern your use of this Site. By accessing, viewing, or using the content, material, or services available on or through this Site, you indicate that you have read and understand these Terms, that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, or if you are under 18 years of age, you are not granted permission to use this Site and must exit immediately.
- Proprietary Rights.As between you and Malouf, Malouf owns or licenses all materials, including images, illustrations, designs, icons, photographs, video clips, and any software concepts and documentation and other material on, in or made available through the Site (“Site Contents”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Contents. All Site Contents are protected pursuant to copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Contents. As between any user and Malouf, all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Site are proprietary to Malouf or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site Contents, other than the right to use the Site Contents in accordance with these Terms.
- Use of This Site.The Site and the Site Contents are intended solely for personal, information, and non-commercial use. YOU MAY NOT USE OUR PRODUCTS LISTED IN THIS SITE OR USE THE MATERIALS DISPLAYED ON THIS SITE TO RESELL OUR PRODUCTS TO ANY PERSON(S) THROUGH ANY PERSONAL WEBSITE OR AUCTION WEBSITE (E.G. EBAY). You agree that you will not use the Site for: (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including but not limited to import, export, copyright, and trademark laws); (b) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Site Contents, unless otherwise authorized by these Terms or in a separate written agreement with Malouf; (c) attempting to gain unauthorized access to Malouf’s computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or any services provided through the Site; (d) any resale or commercial use of the Site; (e) any downloading or copying of the Site Contents for any reason, or any use of data mining, robots or similar data gathering and extraction tools; (f) using the Site to access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including, without limitation, commercial purposes; or (g) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Site aimed at preventing or restricting the unauthorized use of the Site or any of the Site Contents. You may use the Site and the Site Contents only as consistent with these Terms. Any other use of the Site or Site Contents, including but not limited to the aforementioned unauthorized uses, without prior written permission of Malouf is strictly prohibited. You acknowledge and agree that the unauthorized use of the Site or the Site Contents could cause irreparable harm to Malouf and that in the event of such unauthorized use, Malouf shall be entitled to an injunction in addition to any other remedies available at law or in equity.
- Some products or services on the Site may be available for purchase. Malouf uses a third party payment processor to process credit card transaction made through the Site. If you purchase products from Malouf or make any payments via the Site with your credit card, the credit card information that you submit to Malouf will be protected by encryption, such as with the Secure Socket Layer (“SSL”) protocol. Encryption decreases the likelihood that your credit card information will be stolen or intercepted during transmission to Malouf. You are responsible for all charges incurred under your account, whether made by you or another person using your account. If for any reason Malouf does not receive payment for a purchase, Malouf may exercise its rights in law and equity, including (a) immediately suspending or terminating your account; (b) seeking collection of the outstanding amount owed; and/or (c) seeking legal action against you for the breach of these Terms. You are also responsible for paying any governmental taxes imposed in connection with use of the Site or the purchase or any products or services made available through the Site, including sales, use, and excise taxes (excluding only taxes on Malouf’s net income).
- Prices and Orders. All prices displayed on the Site are quoted in U.S. dollars. Maloufmay restrict delivery to addresses within the United States and Canada. Malouf will add shipping and handling fees and applicable sales/use tax in accordance with its then existing policies. Malouf reserves the right without prior notice to discontinue or change specifications and prices on products and services offered on its Site without incurring any obligation to you. Products displayed on this Site are available while supplies last. Descriptions of, or references to, products or services on this Site do not imply endorsement of that product or service, or constitute a warranty, by Malouf. The receipt by you of an order confirmation does not constitute Malouf’s acceptance of an order. Prior to Malouf’s acceptance of an order, verification of information may be required. Malouf reserves the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from Malouf. Malouf reserves the right to limit the order quantity on any item and to refuse service to any customer without prior notification. In the event that a product or service is listed at an incorrect price due to supplier pricing information or typographical error, Malouf shall have the right to refuse or cancel orders placed for the product listed at the incorrect price, regardless of whether the order has been confirmed and your account charged. If your account has already been charged for the purchase and your order is canceled, Malouf shall promptly issue a credit to your account in the amount of the incorrect price, or provide you with a refund at your election. The risk of loss and title for all products purchased by you and shipped by Malouf pass to you upon Malouf delivery to the carrier for shipment. The risk of loss and title for all products purchased by you and shipped directly by one of Malouf vendors pass from such vendor to you upon such vendor’s delivery to the carrier for shipment.
- Product Photographs and Information.We have made every effort to display as accurately as possible the colors of our products that appear on this Site. However, since the actual colors you see depend upon your computer and monitor, we cannot guarantee that the display of any color will be completely accurate. All product descriptions, including descriptions of material, weight, and dimensions are as accurate as possible, however we cannot guarantee that all product information will be complete accurate.
- User Comments, Feedback, and Other Submissions.Certain features of the Site may allow you to contribute other materials and information for access, use, viewing and commentary by other users to the Site, and Malouf may contact you to periodically to participate in certain survey programs (collectively, “Comments”). By posting Comments, you represent that you have the full legal right to provide the Comments and that use of the Comments by the Site and all other persons and entities will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) constitute disclosure of any confidential information owned by any third party. Upon your submission of Comments or other material or information to Malouf, you grant Malouf a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the Comments, all without any compensation to you whatsoever. For avoidance of doubt, Malouf shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay to user any compensation for any Comments; or (3) to respond to any user Comments. If you believe that any content or postings on the Site violate your intellectual property or other rights, please follow our Complaint Procedure in Section 8 of these Terms.
- Complaint Procedures. If you believe that any content or postings on this Site violates your intellectual property or other rights, please notify Malouf through Contact Customer Service with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your email address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”
- Third Party Websites and Features.The Site may contain links to other websites for the convenience of users in locating information, products, or services that may be of interest. Links to other websites, including those of Malouf’s distributors, partners, suppliers or vendors, do not constitute sponsorship, endorsement, or approval by Malouf of the content, policies, or practices of such linked sites. The Site may also incorporate features and services provided by third parties, such as payment processing. Linked sites and incorporated features and services are not operated, controlled, or maintained by Malouf and it is not responsible for the availability, content, security, policies, or practices of linked sites, including without limitation privacy policies and practices. Links to other sites are provided for your convenience only, and you access them at your own risk.
- Changes in Terms and Termination.Malouf shall have the right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new terms and conditions with respect to access to or use of this Site. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to posting the revised or additional terms and conditions on this Site. You are responsible for reviewing this Site periodically for any modification to these Terms that may affect your rights or obligations hereunder. You agree that you shall be deemed to be apprised of and bound by any modification by Malouf to these Terms. ANY ACCESS OR USE OF THIS SITE BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to these Terms by any party other than Malouf shall be valid or enforceable against Malouf unless expressly agreed to in writing signed by a duly authorized officer of Malouf. Malouf may suspend or terminate your account and/or your ability to use the Site, or any services on the Site, for failure to comply with these Terms, for providing Malouf with untrue or inaccurate information about yourself, for infringement upon Malouf proprietary rights, or for any reason whatsoever or for no reason.
- Disclaimer as to the Site. Malouf, its subsidiaries, and affiliates, are not responsible for and do not guarantee the accuracy or completeness of any Site Contents, Comments, data, links, advertisements or other items contained within the Site. Malouf reserves the right to immediately remove any Site Contents or Comments for any reason, or for no reason. Malouf cannot and does not review all communications, products, or services made available on or through the Site, but, although not obligated to, may review, verify, make changes to or remove any Comments, Site Contents, or the Site, including information submitted in connection with the Site Contents or other features at any time, with or without notice in its sole discretion. Without limiting anything else in these Terms or otherwise, Malouf is not responsible for any errors or omissions in the Site or Site Contents. Purchasing and other decisions remain with you at all times. You agree that you must evaluate and bear all risks associated with the use of Site Contents or Comments and that you may not rely on such Site Contents or Comments. THE SITE, THE SITE CONTENTS, COMMENTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.” USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. MALOUF AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE, THE COMMENTS, THE SITE CONTENTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL COMMENTS, THE SITE, THE SITE CONTENTS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, IS WITH YOU.
- Limitation of Liability as to the Site. MALOUF AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SITE, THE COMMENTS, THE SITE CONTENTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR MALOUF HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF MALOUF AND ITS LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITE, COMMENTS, THE SITE CONTENTS ON, IN AND MADE AVAILABLE THROUGH THE SITE, OR THE SERVICES, PRODUCTS, DATA OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE SITE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF MALOUF AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10). If you are dissatisfied with the Site or with any of these Terms, or feel MALOUF has breached these Terms, your sole and exclusive remedy is to discontinue using the Site.
- Disclaimer and Limitation of Liability as to Products and Services.We want you to be completed satisfied with your purchase. If for any reason you are not entirely pleased with a product you purchased on the Site, simply return or exchange the item in accordance with our Return Policy. Some products may be packaged with the manufacturer’s warranty and service information detailing specific terms and conditions. Manufacturers’ warranties may vary from product to product. PRODUCTS AND SERVICES SOLD BY MALOUF ARE SUBJECT TO ANY APPLICABLE WARRANTIES AND REPRESENTATIONS OF THEIR RESPECTIVE MANUFACTURERS. ACCORDINGLY, MALOUF MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY PRODUCT OR SERVICE SOLD. EXCEPT AS EXPRESSLY STATED HEREIN, MALOUF EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO PRODUCTS AND SERVICES SOLD ON THE SITE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties. UNDER NO CIRCUMSTANCES SHALL MALOUF, ITS SUPPLIERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND BUSINESS INTERRUPTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, ARISING IN ANY WAY FROM ANY PRODUCT OR SERVICE SOLD OR PROVIDED ON THE SITE, EVEN IF IT HAS BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MALOUF’S LIABILITY EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF MALOUF AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10).
- You agree to defend, indemnify, and hold harmless Malouf, its vendors, owners, affiliates, related entities and their respective directors, officers, employees, and agents from and against all claims, losses, damages, liabilities, and costs (including but not limited to reasonable attorneys’ fees and expert fees), arising out of or relating to your use of the Site, the Site Contents or any services, product or data obtained through the Site, your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, the Comments, the Site Contents, the services, products, information and other materials on, in and made available through the Site, except to the extent attributable to Malouf, or any breach by you of these Terms. You may not settle any Claim without the prior written consent of Malouf. Malouf or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Malouf or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to Malouf, subject to the right of Malouf to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
- Internet Security. Malouf uses reasonable efforts to ensure that the Site is generally available. However, there will be occasions when access to the Site will be interrupted or unavailable. Malouf will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that Malouf shall not be liable to you for any modification, suspension or discontinuance of the Site. You understand that the technical processing and transmission of any Site content may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to Malouf via the Site or the Internet, including, for example, personal information such as your name or address.
- Dispute Resolution/Choice of Venue. All parties agree to binding arbitration as set forth by the American Arbitration Association to be undertaken in New York, New York, U.S.A. Furthermore, parties agree to mediation with an agreed upon mediator to be undertaken in New York, New York, U.S.A. If the parties cannot agree on a mediator each party shall submit one name and the name will be drawn at random from the names submitted and that name shall be the mediator for all purposes. If the mediation is not successful the parties shall proceed with Binding Arbitration under the rules of the American Arbitration Association.
- Applicable Law. These Terms will be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law rules. By accessing, viewing, or using the services, works, content, or materials on the Site, you consent and agree to (a) the exclusive jurisdiction of the federal and state courts located in New York City, New York; (b) accept service of process by personal delivery or mail; and (c) irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available. If any provision of these Terms shall be deemed unlawful, invalid or unenforceable for any reason, then that provision(s) shall be deemed severable from the Terms, and shall not affect the validity or enforceability of the remaining provisions.
- Entire Agreement.These Terms constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. No waiver by Malouf of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The headings and captions in these Terms are intended for convenience only and shall in no way affect the interpretation of the Terms. Notwithstanding the foregoing, these Terms and the information provided in this Site in no way override the terms and conditions of your purchase of any product or service, except as specifically provided herein.
- Acts Beyond Control.Malouf shall not be liable for any nonperformance or delay in performance caused by any act beyond its reasonable control, including but not limited to acts or omissions of third parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.
- The Site is controlled and operated from within the United States. Without limiting anything else, Malouf makes no representation that the Site, Site Contents, Comments, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so, on their own volition and are responsible for compliance with applicable laws. The waiver or failure of Malouf to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”
Dated: September 19, 2017