Last Modified on November 26, 2013
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
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.
1. Amendments and Changes
3. Copyright and No Unauthorized Use of Adornably’s 3D Décor Models
You agree that Adornably’s 3D rendering designs of furniture and other home décor items (the “3D Décor Models”) are proprietary content that are owned by Adornably and/or its agents or licensors, and are protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use the 3D Décor Models in any way whatsoever that is inconsistent with the terms of this Agreement or that infringes any intellectual property rights of a third party or Adornably. No portion of the 3D Décor Models may be reproduced in any form or by any means.
You agree not to modify, rent, lease, loan, sell, distribute, 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.
4. 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.
5. Limited License, Access, and Accounts
4.1. Limited License. Adornably grants you a non-exclusive, non-transferable, revocable, limited license, subject to all limitations provided herein, to access and use the Adornably Services using a personal computer or a mobile device only for personal and non-commercial use solely in accordance with the terms of this Agreement. Except for the foregoing limited license, no right, title or interest shall be transferred to you. This license does not allow you to use the 3D Décor Models in any manner except in connection with the Adornably Services home décor visualization mobile application.
4.2. Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside. Children under the age of 13 are not allowed to use the Adornably Services or to create an account.
4.3. Account. To access certain portions of the Adornably Services, you may be required to create an account through the Site (an “Account”). You agree that you shall not create an Account or access the Adornably Services if you (i) are under the age of 13, (ii) if you have previously been removed by Adornably or banned from using the Adornably Services, (iv) are located in a country embargoed by the United States or (v) are on the U.S. Treasury Department’s list of Specially Designated Nationals.
4.4. Account Security. You are entirely responsible for maintaining the confidentiality of your Account username and password. You agree to notify Adornably immediately if you believe that your Account username and/or password have been compromised.
4.5. Rules Related to Adornably Account Names. When you create an Account, you will have to create a username. Your username may be visible to other users. When you choose an Account name, or display name or otherwise create a label or image that can be seen by other users of the Adornably Services, including, without limitation, usernames (each a “User Identifier”), you must abide by the rules of common decency. If Adornably finds a User Identifier to be offensive or improper, or believes a User Identifier is or may be illegal, it may, in its sole and absolute discretion, change the User Identifier, remove the User Identifier, and/or suspend or terminate your Adornably Account.
4.6. User Rules. As a condition of use, you promise that, in connection with your use of the Adornably Services, you will not:
(a) Violate any applicable law, regulation, or contract;
(b) Without limiting the foregoing, make available through the Adornably Services any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity);
(c) Misrepresent yourself in any way;
(d) Make any false, misleading, or inaccurate statements;
(e) Use language that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, unlawful, or invasive of another’s privacy;
(f) Impersonate any person or entity, including any employee or representative of Adornably; or
(g) License or create derivative works from any information or content obtained from the Adornably Services.
Adornably reserves the right to permanently suspend or terminate your Account and your access to the Adornably Services or seek appropriate injunctive or monetary relief if it suspects that you have violated any of the User Rules of the Adornably Services.
If you have a valid and active Account, you may post communications and other content to the forums section of the Adornably Services (the “Forums”). You agree to abide by the User Rules above. You understand that much of the information included in the Forums is from other users who are not employed by or under the control of Adornably. You further acknowledge that users participating in the Forums may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, deceptive, abusive or even unlawful. Adornably neither endorses nor is responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed in the Forums by you or the other users. The opinions expressed in the Forums reflect solely the opinions of you and/or the other users and do not reflect the opinions of Adornably. Adornably is not responsible for any errors or omissions in postings, for hyperlinks embedded in messages or for any results obtained from the use of the information contained in the Forums. Under no circumstances will Adornably be liable for any loss or damage caused by your reliance on the information in the Forums or your use of the Forums. You should be aware that, when you disclose information about yourself in a Forum, the information is being made publicly available and may be collected and used by other users. When you disclose any information in a Forum, you do so at your own risk. Adornably reserves the right to, but has no obligation to, monitor the Forums, or any postings or other materials that you or other players transmit or post on the Forums, to alter or remove any such materials, and to disclose such materials and the circumstances surrounding their transmission to any third party.
7. Links to Other Websites
The Adornably Services may contain links to websites operated by other parties. Adornably provides these links to other websites as a convenience, and use of those sites is at your own risk. The linked sites are not under the control of Adornably, and Adornably is not responsible for the content available on the other sites. Such links do not imply Adornably’s endorsement of information or material on any other site and Adornably disclaims all liability with regard to your access to and use of such linked websites.
8. Software Updates
In an effort to improve the Service, Adornably may update its Adornably Services, including its Apps and software, without notifying you.
9. Fees and Payments
9.1. Fees and Payments. Some aspects of the Adornably Services require you to pay a fee. For example, you may purchase personal design consultations and/or physical products through the Adornably Services. You agree to pay all fees, payments and applicable taxes incurred by your Account you used to access the Adornably Services. You acknowledge and understand that Adornably does not manufacture any physical products and that most product purchases will be fulfilled and shipped through a third party retailer or manufacturer. You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice, to (i) discontinue or limit the available quantity of any product or aspect of the Adornably Services, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; and (iii) refuse to allow any user to purchase a product or deliver any product to a user. When you purchase products through the Adornably Services, you (a) agree to pay the price for such products set forth in the Adornably Services, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (b) authorize Adornably to charge your credit card or other payment method for the Full Purchase Amount. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
9.2. Return and Refund Policy. There are no refunds or returns for the purchase of personal design consultations though the Adornably Services. Each piece of furniture and home décor item for sale through the Adornably Services has its own individual return policy. The return policy for each furniture and home décor item will be provided after the item is added to the online shopping cart and/or in the description of the item. If no return policy is listed in the online shopping cart or in the description of the item, then the sale is final and there will be no refund or return allowed.
9.3. Changes to Products and Pricing. Adornably may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of the Adornably Services or any products or services sold through the Adornably Services. The inclusion of any products made available through the Adornably Services at a particular time does not imply or warrant that these products will be available at any other time. Adornably reserves the right to change prices for products displayed on the Adornably Services at any time, and to correct pricing errors that may inadvertently occur. All such changes shall be effective immediately upon posting of such new product prices to the Site.
9.4. Order Acceptance/Confirmation. Once we receive your order, we will provide you with an email order confirmation. Your receipt of an order confirmation, however, does not signify Adornably’s acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. Adornably reserves the right at any time after receiving your order to accept or decline your order for any reason. Since Adornably does not manufacture any physical products and most product purchases are fulfilled and shipped through third party retailers and manufacturers, each product order is subject to the third party having it in stock at the requested price. If Adornably or the third party retailer or manufacturer refuses to fulfill the product order for any reason, you agree that Adornably is not liable. If Adornably cancels an order after you have already been billed, then Adornably will refund the billed amount.
9.5. Shipment of Products. Title and risk of loss for any purchases of physical products pass to you upon delivery to the carrier.
10. Qualcomm Vuforia Toolkit with Cloud Recognition
10.1 Each end user consents to the collection, storage, and use by QUALCOMM AUSTRIA RESEARCH CENTER GMBH (“QUALCOMM Austria”) and its affiliates and service providers of certain technical and related information (“Statistics”) collected by the Vuforia Toolkit (“Software”) and the transfer of Statistics between QUALCOMM Austria and its affiliates and service providers (which may be in the United States or in other countries), in each case for the purposes of (a) facilitating the provision of new products, updates, enhancements and other services, (b) improving the Software, and other products, services and technologies, and (c) providing new products, services or technologies to you and customers of QUALCOMM Austria and its affiliates; and
10.2 Users should not use a camera based application while driving, walking, or otherwise by being distracted or disoriented from real world situations; and
10.3 Each end user consents to the collection, storage, and use by Qualcomm Technologies, Inc. (“QTI”) and its affiliates and service providers of camera views and statistics as part of providing the Service, and the transfer of camera images and Statistics to QTI’s affiliates and service providers (which may be in the United States or in other countries), in each case for the purposes of providing its service as well as to (a) facilitate the provision of new products, updates, enhancements and other services, (b) improve the Vuforia SDK, its service, and other products and technologies, and (c) provide new products, services or technologies to customers of QTI and its affiliates;
10.4 Each end user agrees not to use the camera software to capture images that comprise, constitute or depict profanity, nudity, pornographic images or explicit sexual themes, or defamatory or libelous statements, material that infringes the intellectual property of any person or entity, material that infringes upon the privacy or data protection rights of any person, or material considered illegal or objectionable. In addition, the end user must agree not to provide or submit facial images, except if and to the extent that they have obtained the legally-binding consent of the subject in advance, provided that such consent must be documented by the user and must be sufficient to permit QTI and its affiliates and service providers to collect, store, use and transfer such images.
11. Notice for Claims of Copyright Infringement.
If you are a copyright owner or agent thereof and believe that content posted on the Adornably Services by a user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
(b) a description of the copyrighted work that you claim has been infringed;
(c) the URL of the location on our website containing the material that you claim is infringing;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Copyright Agent can be reached by mail at: Adornably, ATTN: Copyright Agent, 1300 Midvale Ave, Suite 602, Los Angeles, CA 90024; or by email at email@example.com. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.
The Adornably Services are operated by Adornably in the United States. Those who choose to access the Adornably Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.
13. 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.
14. 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.
16. 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 17 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.
17. 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.
18. 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 discontinuing your use of the Adornably Services and notifying Adornably in writing.
Agreement Revisions. This Agreement may only be revised in writing by Adornably, or published by Adornably on the Site.
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.