ADORNABLY END USER LICENSE AGREEEMENT
Last Modified on July 27, 2015
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT. SECTION 10 CONTAINS A BINDING ARBITRATION AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS LICENSE AGREEMENT, THEN YOU MUST IMMEDIATELY UNINSTALL ADORNABLY’S SOFTWARE
Welcome to Adornably. We offer unique décor and interior design visualization services to help you find inspiration for decorating your home or office. We also offer for sale furniture, accessories, upholstery, lighting, and other home décor items.
This End User License Agreement (the “Agreement”) describes the terms and conditions under which you are licensed to install and use, Adornably’s mobile applications (the “Adornably Services”). This Agreement is between you and Adornably, Inc. (“Adornably”, “we”, or “us”). By using any of the Adornably Services, you represent that you are an adult and have the legal capacity to enter into a contract in the jurisdiction where you reside and that you consent to this Agreement. If you do not agree to any terms of this agreement, you are not permitted to use the Adornably Services. If you choose not to consent to this Agreement, then you have fourteen (14) days to contact Adornably directly at email@example.com to inquire about a refund.
1. Discontinuation of Adornably Services
You understand that Adornably may discontinue or restrict your use of the Adornably Services for any reason or no reason with or without notice.
2. Copyright and No Unauthorized Use of Adornably’s 3D Décor Models
You agree not to modify, rent, lease, loan, sell, distribute, commercially exploit, or create derivative works based on the 3D Décor Models, in any manner, and you shall not exploit the 3D Décor Models in any unauthorized way whatsoever, including but not limited to, using the 3D Décor Models in any way without Adornably’s express permission in connection with Adornably’s Services. You also agree not to: circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the 3D Décor Models; reverse engineer the 3D Décor Models; insert any code or product or manipulate the content of the Adornably Services in any way; or, use any data mining, data gathering or extraction method on the Adornably Services.
You hereby agree that Adornably would be irreparably damaged if the 3D Décor Models were used in any way inconsistent with this Agreement, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies, including permanent injunctive relief, in addition to such other remedies as we may otherwise have available to us under applicable laws. You agree that unauthorized use of the 3D Décor Models may subject yourself to further civil and criminal penalties, including monetary damages.
Additionally, photographs and other materials on the Adornably Services belong to or are licensed to Adornably, and are protected by United States and foreign copyright laws. We also own the names we use for our products and services on the Site and Adornably Services, and these names are protected by United States trademark laws. Certain materials may also be protected by design patents. If you use the materials or trademarks on the Adornably Services in a way that is not allowed by this Agreement, you are violating the Agreement and may also be violating copyright, trademark, and other laws.
In that case, we automatically revoke your permission to use the Adornably Services. Title to the materials remains with us or with the authors of the materials contained on the Adornably Services. All rights not expressly granted are reserved.
3. Image Submissions
The Adornably Services offer interactive features that allow you to submit materials (including photographs of rooms) on the mobile application, forums, and Site accessible and viewable by other users of the Adornably Services and the public. You agree that any use by you of such features, including any materials submitted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene or objectionable. You also agree that you have obtained all necessary rights and licenses. You agree to provide accurate and complete information in connection with your submission of any materials on the Adornably Services. You hereby grant Adornably a worldwide, royalty-free, nonexclusive license to use such materials without any compensation or obligation to you. Adornably reserves the right to not post or publish any materials, and to remove or edit any material, at any time in its sole discretion without notice or liability.
4. LIMITED USE LICENSE
5. Software Updates
In an effort to improve the Adornably Services, Adornably may update its Adornably Services, including its Apps and software, without notifying you.
6. Disclaimer of WarrantIES
THE ADORNABLY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ADORNABLY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE ADORNABLY SERVICES. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE ADORNABLY SERVICES IS AT YOUR SOLE RISK. ADORNABLY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE ADORNABLY SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE ADORNABLY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE ADORNABLY SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ADORNABLY DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY USING THE ADORNABLY SERVICES, YOU AGREE THAT ADORNABLY SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
7. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ADORNABLY, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE ADORNABLY SERVICES, EVEN IF ADORNABLY AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADORNABLY IS NOT LIABLE FOR ANY INTERRUPTION OF SERVICE. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF ADORNABLY OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Adornably and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, hold harmless and defend Adornably and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners and licensors at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Adornably arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, including any unauthorized disclosure of personal or confidential information or (b) use or misuse of the Adornably Services.
9. Dispute Resolution and Governing Law
This Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. Except as provided in Section 10 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Adornably Services shall be subject to the exclusive jurisdiction of the state and federal courts located in the County of Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts. You are responsible for compliance with all local laws if and to the extent local laws are applicable.
10. Binding Arbitration
(a) Arbitration Procedures. You and Adornably agree that, except as provided in Section (d) below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section will control and prevail.
Except as otherwise set forth in Section (d) below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and Adornably may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND ADORNABLY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(b) Location. The arbitration will be conducted in the County of Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
(c) Limitations. You and Adornably agree that any arbitration shall be limited to the Claim between Adornably and you individually. YOU AND ADORNABLY AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
(d) Exceptions to Arbitration. You and Adornably agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Adornably’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
(e) Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
(f) Severability. You and Adornably agree that if any portion this Section is found illegal or unenforceable (except any portion of Section (d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section (d) is found to be illegal or unenforceable, then neither you nor Adornably will elect to arbitrate any Claim falling within that portion of Section (d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and Adornably agree to submit to the personal jurisdiction of that court.
11. Term and Termination
This Agreement is effective until terminated. Adornably may terminate this Agreement with or without notice for any reason, or for no reason. You may terminate this agreement by: (i) discontinuing your use of the Adornably Services; (ii) permanently destroying all copies of the Adornably Services in your possession or control; (iii) removing the Adornably Services from your hard drive; and (iv) notifying Adornably in writing of your intention to terminate this Agreement.
Agreement Revisions. This Agreement may only be revised in writing by Adornably, or published by Adornably on the Site. Your continued use of the Adornably Services following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
Force Majeure. Adornably shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Adornably, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Adornably’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Adornably as a result of this Agreement or your use of the Adornably Services.
Assignment. Adornably may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without Adornably’s prior written consent, and any unauthorized assignment by you shall be null and void.
Severability. If any part of this Agreement is determined to be void, invalid or unenforceable, then that portion shall be severed, and the remainder of the Agreement shall be given full force and effect.
Attorneys’ Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Equitable Remedies. You hereby agree that Adornably would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Adornably Services and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Adornably Services.
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING END USER LICENSE AGREEMENT AND AGREE THAT MY USE OF THE ADORNABLY SERVICES IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT.