Last Updated: May 2016
BY (A) VISITING OR USING THE WEBSITE; (B) ACCESSING, ACTIVATING, OR USING THE SERVICE OR APPLICATION; OR (C) CREATING AN ACCOUNT (either directly THROUGH the Service, through A THIRD PARTY, OR THROUGH A social networking service SUCH AS PINTEREST.COM. (a "Social Networking Service"), YOU AGREE TO BE BOUND BY THIS AGREEMENT. If you do not wish to be bound by this Agreement, do not undertake any of these aforementioned activities. If you access the Service through—or use the Service to access—a third party website, Social Networking Service, or mobile applications provider, then the applicable third party website, Social Networking Service, or mobile applications provider may have additional terms and conditions that are applicable to your use of the applicable website, Social Networking Service or mobile application and you must also comply with these terms and conditions, as applicable. You agree that we will have no responsibility or liability for any such use, access, agreement, or transaction of or between you and any third party or Social Networking Service.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and we may have against each other are resolved (see Section 21 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 21. Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
WHEN YOU USE THE SERVICE, YOU REPRESENT AND WARRANT TO THE COMPANY THAT (A) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) YOU ARE AT LEAST 16 YEARS OF AGE; AND (C) YOU ARE OF SUFFICIENT LEGAL AGE OR OTHERWISE HAVE LEGAL CAPACITY TO LEGALLY ENTER INTO THIS AGREEMENT.
In order to participate in or receive certain portions of the Service (including, but not limited to, the Application), you will be required to create an account with the Company ("Account") and you may also be required to maintain an account with the Social Networking Service through which you typically access the Service or with the applications provider for your supported mobile device. Once you create an Account, your Account will allow you to access the Application. You may control certain aspects of how you interact with the Service by changing the settings in the Application and/or the Social Networking Site through which you access the Service. When accessing the Service through a Social Networking Service, your ability to adjust the settings that control these preferences is solely within the control of the Social Networking Service you use. Your Account is for your individual, personal, and non-commercial use only, and you may not authorize others to use your Account for any purpose. By creating your Account, you certify that all information you provide is complete and accurate. You agree to update your information when required or requested, and you further agree not to use another person's account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, your Account and the associated password, and you agree to accept sole responsibility for all activities that occur under your Account or password. You agree to notify us immediately at firstname.lastname@example.org of any breach of security or unauthorized use of your Account or any violation of this Agreement by others of which you are aware.
In order to access or participate in the Service, you will need telecommunications access to a mobile phone, tablet, or personal computer mobile device owned or otherwise controlled by you, connected to the internet, and compatible with the Service (each a "Device"). You will also be responsible, at your expense, for all telecommunications access and telephone service required to access or participate in the Service and all related third-party service fees (including ISP charges). Certain messaging, service, and other fees and charges may be applied by your carrier. Please check with your carrier to ensure that you are aware of any applicable fees and charges relating to your particular service plan. The Company is not responsible for any expenses incurred by you while accessing or using the Service.
You acknowledge and agree that the Service is provided under license and is not sold to you. You do not acquire any ownership interest in the Service under this Agreement or any other rights other than to use the Service in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. The Company and its licensors and service providers reserve and retain exclusive ownership of—and all right, title, and interest in and to—the Service and all content and materials provided in connection with the Service (other than Personal Content, as described below), and all related intellectual property rights, subject only to the limited license granted to you in Section 5.2.
You agree that you will not in connection with your use of the Service:
Some areas of the Service may allow you and other users to post content, comments, questions, and other information ("User Content"). You are solely responsible for the User Content that you upload, publish, display, link to, or otherwise make available (hereinafter, "post") on or through the Service. You acknowledge and agree that your communications with other users via chats, conferences, bulletin boards, blogs, posts, and any other publicly accessible avenues of communication through the Service are public and not private communications. Therefore, we strongly encourage you to use caution before disclosing any personal information about yourself in your public communications.
By posting User Content on or through the Service, you represent and warrant that:
As between you and the Company, you retain all your ownership rights in your User Content. However, by uploading, making available or submitting User Content, you grant us and our business partners and affiliates a royalty-free, perpetual, irrevocable, world-wide, assignable, and transferable right and license to quote, re-post, use, copy, reproduce, modify, create derivative works of, incorporate into other works, distribute, transmit, broadcast, communicate, publicly display, publicly perform, and otherwise exploit your User Content in any form or media now known or hereafter created, anywhere, and without any notice or compensation to you of any kind. You hereby grant us all consents, rights, and clearances to enable us to use your User Content for these purposes. Without limiting the foregoing, we may:
We may, in our sole discretion, remove any User Content that appears to infringe on the intellectual property rights of others. We may, in our sole discretion, terminate access to the Service by users who infringe or appear to infringe on the intellectual property rights of others.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO SCREEN OUR USERS, INQUIRE INTO THE BACKGROUNDS OF OUR USERS, AND ATTEMPT TO VERIFY THE STATEMENTS OF OUR USERS. PLEASE ALSO USE CAUTION, COMMON SENSE, AND SAFETY WHEN USING THE SERVICE TO INTERACT WITH OTHER USERS.
WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS OR TO TERMINATE OR BLOCK YOU AND OTHER USERS FOR VIOLATIONS OF THIS AGREEMENT.
In the event that you have a dispute with one or more other users, you hereby release us, our parent, subsidiaries, and affiliated entities and ours and their shareholders, directors, officers, employees, agents, successors, and assigns from any and all claims, demands, damages (actual and consequential), losses, and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to any dispute. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
As consideration for the license and rights granted to you under this Agreement, you agree that (A) the Company and its business partners have the right to provide ads, promotions, offers, and other information to you by email or other means of communication; and (B) we may allow the Service to utilize the processor, bandwidth, and storage hardware on your Devices for the purposes of facilitating (i) the communication and transmission of content and other data or features to you and other users of the Service; and (ii) the operation of the network(s) on which the Service runs. You may opt-out of receiving promotional messages from the Company at any time by pressing the "unsubscribe" link in any of the emails containing the promotional messages from the Company. We acknowledge the rights reserved for the Company under this Section 10 may not be exercised in any and all jurisdictions. Accordingly, we will only deliver ads, promotions, and offers in consideration of the license and rights granted under this Agreement where we are permitted to do so in accordance with applicable law, and in all other jurisdictions we may attempt to secure your consent through an opt-in or otherwise.
The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that the Company has no control over and is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, use of personal information, legality, decency, quality, or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials, and links to Third Party Materials, are provided solely as a convenience to End Users; your access and use of them is entirely at your own risk and subject to the terms and conditions of use provided by the applicable third party.
You agree that the Company will use your email address to send you messages related to the Service, in lieu of communication by postal mail or other methods, except where the Company is expressly required by applicable law to provide other notice. The Company may also use your email address to send you other messages, such as changes to features of the Service, new applications, and special offers. If you do not want to receive these messages, you may opt-out by using the unsubscribe option in the applicable email. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
The Service is deemed based and provisioned by the Company in the United States. The Service is made available only to persons located in the United States or in such other jurisdictions that are expressly authorized by the Company. You acknowledge that you might not be able to access all or some of the Service outside of the United States and that such access may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you are responsible for compliance with local laws.
SUBJECT TO APPLICABLE LAWS AND REGULATIONS, THE COMPANY PROVIDES THE APPLICATION TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY—ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS—EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE APPLICATION. THIS DISCLAIMER INCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WHETHER THEY MAY ARISE OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE ERROR FREE; OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR
(B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THESE LIMITATIONS WILL APPLY WHETHER ANY DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER ANY DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF ANY DAMAGES.
The Company will not be liable for any delay or failure in performance of the Service by an event beyond the Company's control, without its fault or negligence, and that by its nature could not have been foreseen by the Company or—if it could have been foreseen—was unavoidable.
You agree to indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including attorneys' fees) arising from or relating to your use or misuse of the Service or your breach of this Agreement.
All claims arising out of or relating to this Agreement and the Service will be finally settled by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with the provisions of the Consumer Arbitration Rules of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator—and not any federal, state, or local court or agency—will have exclusive authority to resolve all disputes arising out of or relating to this Agreement. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award will be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this Agreement will be subject to the Federal Arbitration Act.
The AAA's rules governing the arbitration may be accessed at or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to AAA. The arbitration rules also permit you to recover attorney's fees in certain circumstances.
The Parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
The Parties further agree that any arbitration will be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above will be deemed null and void in its entirety and the Parties will be deemed to have not agreed to arbitrate disputes.
Notwithstanding the Parties' decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in this section by sending written notice of your decision to opt-out to the following address: 305 West Broadway, #198 NY NY 10013, Attention: FINERY Customer Service. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you will be bound to arbitrate disputes in accordance with the terms set forth above. If you opt-out of these arbitration provisions, then the Company also will not be bound by them. In addition, if you elect to opt-out of these arbitration provisions, then the Company may terminate your use of the Service.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE THAT CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
No delay or failure to take action under this Agreement will constitute any waiver by the Company of any provision of this Agreement.
This Agreement is personal to you and may not be transferred, assigned, or delegated by you to any other person or entity. Any attempt by you to assign, transfer, or delegate this Agreement will be null and void.