Welcome to the Culture Factory USA website, which is located at www.culturefactoryusa.com (the "Site"). The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Site and Culture Factory USA Service (as defined below). Purchase of any product or service on the Site constitutes your agreement to and acceptance of all the TOS.
Culture Factory USA (along with our licensees and assignees referred in this Agreement as “us” and “we” and “Culture Factory USA”) reserves the right to add to, delete or change these TOS because of frequent changes in Internet technology and applicable law. As such, you should check these TOS from time to time for such changes.
1. The Culture Factory USA Service. Culture Factory USA provides a number of Internet-based services and products through the Site (all such services, collectively, the " Culture Factory USA Service" and “Products”).
2. Use of the Site and Culture Factory USA Service.
(a) Eligibility. Culture Factory USA will only knowingly provide the Culture Factory USA Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Culture Factory USA Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Culture Factory USA Service is not intended for children under the age of 13.
(b) Compliance With TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Culture Factory USA Service and the Site.
(c) Your License to Use the Site and the Culture Factory USA Service.
(1) Culture Factory USA and its licensors solely and exclusively owns all intellectual property and other right, title and interest in and to the Culture Factory USA Service and Site, except as expressly provided for in these TOS. You will not acquire any right, title or interest therein under these TOS or otherwise.
(2) Culture Factory USA grants you a limited revocable license to access and use the Site and the Culture Factory USA Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Site for purposes prohibited by Culture Factory USA ; create derivative works based on the Products or any third party content available via the Site; or download or copy the Site (other than page caching). If you use the Site in a manner that exceeds the scope of this license or breach this TOS, Culture Factory USA may revoke the license granted to you.
(3) This Section 2(c) does not pertain to your intellectual property rights. Any rights relating to materials that you upload to the Site are covered by the Digital Rights Agreement.
3. Rules For Use Of the Site.
(a) Prohibited Use. Except as may be expressly permitted by Culture Factory USA , you may not: (i) interfere with the Culture Factory USA Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Culture Factory USA Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Culture Factory USA Service; (v) impersonate another person or entity; (vii) use any meta tags, search terms, key terms, or the like that contain Culture Factory USA 's name or trademarks; (viii) engage in any activity that interferes with another user's ability to use or enjoy the Culture Factory USA Service; or (ix) assist or encourage any third party in engaging in any activity prohibited by these TOS.
(c) Ordering Products. If you purchase Products, you agree to do so in accordance with Culture Factory USA 's Customer Bill of Rights below. Title to Products that you buy will pass to you upon delivery of the Products to the common carrier.
(d) Monitoring. Culture Factory USA reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Site. If Culture Factory USA determines, in its sole and absolute discretion, that you or another Culture Factory USA user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, Culture Factory USA may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
(e) Modification of the Service. Culture Factory USA may modify the Culture Factory USA Service at any time with or without notice to you, and will incur no liability for doing so.
4. Submissions. When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant Culture Factory USA permission to use such submissions for marketing and other promotional purposes. You agree that Culture Factory USA will have no obligation to keep any Submissions confidential and you will not bring a claim against Culture Factory USA based on "moral rights" or the like arising from Culture Factory USA 's use of a Submission.
5. Representations and Warranties.
(a) Mutual Representations and Warranties. You represent and warrant to Culture Factory USA and Culture Factory USA represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
(b) By You. You represent and warrant to Culture Factory USA that, in your use of the Culture Factory USA Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Culture Factory USA that: (i) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your Submissions; (ii) Culture Factory USA will not be required to make any payments to any third party in connection with its use of your Submissions, except for the expenses that Culture Factory USA incurs in providing the Culture Factory USA Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Submissions will not cause injury to any third party; and (iv) your Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
6. Disclaimers, Exclusions, and Limitations.
(a) DISCLAIMER OF WARRANTIES. Culture Factory USA PROVIDES THE SITE AND Culture Factory USA SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. Culture Factory USA DOES NOT REPRESENT OR WARRANT THAT THE SITE, Culture Factory USA SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. Culture Factory USA MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
(b) EXCLUSION OF DAMAGES. Culture Factory USA WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE Culture Factory USA SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID OR PAYABLE BY Culture Factory USA TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
7. Indemnification. You will indemnify and hold Culture Factory USA and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS. If you have to indemnify Culture Factory USA under this Section, Culture Factory USA will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Culture Factory USA 's express written permission.
(a) Termination. Culture Factory USA may suspend or terminate your use of the Site or Culture Factory USA Service if it believes, in its sole and absolute discretion, that you have breached a term of these TOS.
(b) Survival. These TOS will survive indefinitely unless and until Culture Factory USA chooses to terminate them.
(c) Effect of Termination. If you or Culture Factory USA terminates your use of the Site or the Culture Factory USA Service, Culture Factory USA may delete any Submissions or other materials relating to your use of the Culture Factory USA Service on Culture Factory USA 's servers or otherwise in its possession and Culture Factory USA will have no liability to you or any third party for doing so.
9. Notice. All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Culture Factory USA , you must use the following addresses: email@example.com. If Culture Factory USA provides notice to you, Culture Factory USA will use the contact information provided by you to Culture Factory USA . All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non- delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
10. Dispute Resolution.
(a) Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND Culture Factory USA AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(b) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Culture Factory USA , to you via any other method available to Culture Factory USA , including via e-mail. The Notice to Culture Factory USA should be addressed to: [Culture Factory USA / ATTN: Rory MacPherson/250 East 30th Street 12C/ New York NY/10016] (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Culture Factory USA do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Culture Factory USA may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against Culture Factory USA , then Culture Factory USA will promptly reimburse you for your confirmed payment of the filing fee upon Culture Factory USA receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
(c) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Culture Factory USA agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. YOU AND Culture Factory USA AGREE THAT YOU AND Culture Factory USA MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that this Agreement and your use of the Services and the Website evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Applicable Law. This Agreement and your use of the Services and the Website shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Culture Factory USA under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, NY and you and Culture Factory USA hereby submit to the personal jurisdiction and venue of these courts.
(g) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Culture Factory USA seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by Culture Factory USA or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Culture Factory USA , and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(h) Claims. You and Culture Factory USA agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the Services or the use of the Website, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
(i) Improperly Filed Claims. All claims you bring against Culture Factory USA must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Culture Factory USA may recover attorneys’ fees and costs up to $5,000, provided that Culture Factory USA has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
11. Miscellaneous. These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of Culture Factory USA . These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and Culture Factory USA are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.