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Effective Date: 1 December 2017
PLEASE READ THIS TERMS AND CONDITIONS AGREEMENT ("AGREEMENT") CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU ("USER") AND OSCAR WINTER US LLC ("OSCAR WINTER," "COMPANY," "WE," OR "US").
IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTIONS BELOW. PLEASE READ CAREFULLY
Your use of the Website, including the purchase of any Products on the Website is also subject to any additional terms, conditions and policies that we separately post on the Website ("Supplemental Terms") which are incorporated by reference into this Agreement. Some of the specialized features and tools accessible through our Website are provided by third-party companies pursuant to their own separate Terms of Service (“Third-Party Terms”) that differ from ours. By using such third-party features and tools, you agree that your relationships with the third-party service providers will be governed by the applicable Third-Party Terms.
Subject to Section 16 of this Agreement, Oscar Winter reserves the right to modify this Agreement or its policies relating to the Website and the purchase of Products from us at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Website. You should regularly review this Agreement, as your continued use of the Website after any such changes constitutes your agreement to such changes.
1. OSCAR WINTER ACCOUNT
You may be required to create an account to use some of the features of the Website. When registering an account, including for the purchase of any Products on the Website ("Account"), you agree to provide only true, accurate, current and complete information requested by the registration form (the "Registration Data") and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Website, nor from the purchase of any Products on the Website under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Oscar Winter immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using the Website or from purchase Products on the Website. You further agree that you will not maintain more than one Account for the same Oscar Winter service at any given time. Oscar Winter reserves the right to remove or reclaim any usernames at any time and for any reason.
2. PRODUCT INFORMATION
Information Provided on the Website. Oscar Winter and its customers post a variety of material on the Website including without limitation, merchandise information, product descriptions, reviews, and comments (collectively, “Materials”). The Materials that appear on the Website are for educational and informational purposes only. Despite our efforts to provide useful and accurate information, errors may appear from time to time. Before you act on information you have found on the Website, you should confirm any facts that are important to your decision. Oscar Winter makes no warranty as to the reliability, accuracy, timeliness, usefulness, or completeness of the information on the Website. Oscar Winter is not responsible for, and cannot guarantee the performance of, goods and services provided by our advertisers or others to whose sites we link. Product information contained on the Website may be different from information contained on the product materials. If you find a product is not as described, your sole remedy is to return it in unused condition (excluding products that are not eligible for return). OSCAR WINTER, ITS AFFILIATES, AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE MATERIALS LOCATED ON ANY OF THE WEBSITE.
Color. Oscar Winter makes all reasonable efforts to display the products listed for sale on its web site(s) as accurately as possible. However, the colors we use, as well as the display and color capabilities of your computer monitor, will affect the colors that you actually see on your screen. Oscar Winter cannot guarantee that your monitor's display of any product color, texture, size, or detail will be accurate.
Irregularities in Hand-Craftsmanship. Given our Products are all hand-crafted, you acknowledge that slight irregularities and variations in craftsmanship or natural characteristics, or internal inclusions, visible or otherwise, in colored gemstones are unique and individual to each item. These characteristics are considered as part of the character of the item, and should not be considered a defect.
3. ORDER PROCESS AND SHIPPING
Order Acceptance. Each part of any order that you submit to Oscar Winter constitutes an offer to purchase. If you do not receive a message from Oscar Winter confirming receipt of your order, please contact our Customer Service department before re-entering your order. Oscar Winter's confirmation of receipt of your order does not constitute Oscar Winter's acceptance of your order. Oscar Winter is only deemed to have accepted your order once the Product(s) you ordered have been shipped.
Billing and Payment. All billing information provided must be truthful and accurate. Providing any untruthful or inaccurate information constitutes a breach of this Agreement and may result in order cancellation. Prior to accepting an order, we may also request additional information from you. We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud checks. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. Oscar Winter (or its third-party payment service provider) may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction. If payment cannot be charged to your payment card or your payment is returned for any reason, Oscar Winter reserves the right to either suspend or terminate your access to the unpaid-for services.
By confirming your purchase at the end of the checkout process, (1) you agree to accept and pay for the item(s), including all applicable fees, charges, and taxes and (2) you authorize Oscar Winter to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services).
Oscar Winter reserves the right to limit the quantity of items purchased per person, per household or per order for any reason. These restrictions may apply to orders placed by the same account, the same credit card, and also to orders that use the same billing and/or shipping address. We will notify you should such limits be applied.
Discounts, Promo Codes and Premium Offers. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis ("Promo Codes"). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Oscar Winter communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) are limited in nature and may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. From time to time, we may offer special promotions (such as free premiums with purchase), associated with some of our Products or Website. All promotional offers, including premium offers, may be discontinued at any time, without prior notice, at our discretion and are only available while supplies last or for the duration noted. Unless otherwise stated in the offer, shipment of premium items may take 6-12 weeks and shipping fees may apply. Promo Codes are void where prohibited by law.
Order Cancellation. Although we strive to accept all valid orders, Oscar Winter reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, (iii) the ordered Product is unavailable due to discontinuance or otherwise; or (iv) we reasonably believe you are engaging in comparison purchasing or are purchasing a Product for resale (as described below). We may also refuse any order that is connected with a previous payment dispute.
Returns and Refunds. Returns and refunds are available only as described in our Return and Exchange Policy. While Oscar Winter will strive to provide returns and refunds, excessive or abusive returns or attempted returns will void our Return and Exchange Policy and any guarantees on future orders.
Product Availability. There are also times when a Product may be sold before we are able to remove it from the Website, is discontinued, or otherwise becomes unavailable. In these circumstances, Oscar Winter reserves the right to (i) cancel your order and provide you a refund for the amount paid for the Product or (ii) issue you a pro rata refund. We will do our best to contact you so that we can help you find something of equal or better quality to your original choice, however.
Comparison Purchasing. To keep our prices low, we do not allow comparison purchasing. Comparison purchasing is the act of buying several items with the intent of keeping the one you like best and returning the remainder. This causes undue restocking and inventory overhead and can be very costly. To confirm the quality of a jewelry item, please contact your Personal Jewelry Advisor (firstname.lastname@example.org) and we would be happy to help you make your choice.
Restrictions on Resale. To protect the intellectual property rights of Oscar Winter and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. Oscar Winter reserves the right to prohibit or limit sales to resellers or other parties who purchase a product from Oscar Winter with the intention to resell that product.
Shipping and Delivery. Oscar Winter only ships within the continental United States. Shipping costs are set out on the Website and may be updated from time to time.
Orders for engagement and wedding rings placed on the Website have an estimated 21-day delivery time from the date of receipt of Order Confirmation. Unless otherwise agreed by us, we will deliver your products to the delivery address indicated on your Order Confirmation. You must enter the correct delivery address details at the time of purchase. If you enter the wrong address, we will not be liable for the loss of your Order, and we will only resend the Product to the correct address at your expense.
Although every effort is made to deliver your engagement and wedding rings within the estimated 21-day delivery time, this may change due to carrier delays. If you make changes to your delivery details or to any part of your Order, the delivery time will be adjusted to 21 days from the date of the relevant change. If the delivery time changes, we will contact you via email and provide a revised estimated delivery time.
If your Products have not arrived within 21 days of the date of issue of your Order Confirmation, contact us at email@example.com
If we have not attempted to deliver your products to you within 21 days of the date of issue of your Order Confirmation, you will have the option to cancel your Order. ORDERS CANNOT BE CANCELLED once the order has shipped. Orders may be RETURNED in accordance with our returns policy once the order has shipped. Oscar Winter’s returns policy is available at https://oscarwinter.com/shipping-returns/
If a product is lost or damaged in transit, contact us at firstname.lastname@example.org
Title to the Product purchased by you (and the related risk of loss on these items) passes to you upon delivery of the items to the common carrier used by Oscar Winter.
Order Changes. Changes can be made to orders but this will affect the original delivery time. All changes must be confirmed via email by you before the change order will be processed. Once your changes have been received, you will be notified of the new expected delivery date via email to your email address on record.
4. USER CONTENT
Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Website, or otherwise provides to Oscar Winter, whether online or offline and whether or not solicited by Oscar Winter ("User Content"). Oscar Winter has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Oscar Winter reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Oscar Winter reserves the right to remove and permanently delete User Content from the Website with or without notice for any reason or no reason.
Ownership of Your Content. Oscar Winter does not claim ownership of any User Content you make available on the Website ("Your Content"). However, when you as a User post or publish Your Content on or in the Website, you represent and warrant that Your Content is original to you and that you exclusively own the rights to such content, including the right to grant all of the rights and licenses in this Agreement without Oscar Winter incurring any third party obligations or liability arising out of its exercise of such rights and licenses. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Website.
License to Your Content. Subject to any applicable Account settings that you select, you grant Oscar Winter, and anyone authorized by Oscar Winter, an irrevocable, nonexclusive, perpetual, worldwide, royalty-free right and license to use, copy, display, publicly perform, transmit, modify, publish, distribute, make derivative works of, sublicense, and otherwise commercially and non-commercially exploit and use Your Content (in whole or in part) in any manner or medium now existing or hereafter developed (including print and electronic storage) and for any purpose. The foregoing grant includes the right to exploit any proprietary rights in Your Content, including, but not limited to, under copyright, trademark, trade secret, patent or other intellectual property laws that exist in any relevant jurisdiction. In connection with the exercise of these rights, you grant Oscar Winter, and anyone authorized by Oscar Winter, the right to identify you as the author of Your Content by name, email address or screen name, as we deem appropriate. You will not receive any compensation of any kind for the use of Your Content. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" area of the Website.
Ratings and Reviews. Ratings and reviews posted by Users on our Website are User Content that is not endorsed by Oscar Winter and do not represent the views of Oscar Winter. Oscar Winter does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect Users to maintain a high level of integrity with respect to ratings and reviews posted through the Website, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable business, product, or service; (ii) you will not provide a rating or review for any business, product, or service with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. We reserve the right to exclude such User Content for any reason or no reason, without notice to you. For example, we may exclude such User Content if we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews.
Feedback. If you choose to provide us any comments, suggestions or recommendations regarding the Website (in written or oral form) (“Feedback”), you further represent and warrant that (a) you have the right to disclose the Feedback, (b) the Feedback does not violate the rights of any other person or entity, and (c) your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works from, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Oscar Winter and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your account or the Website.
All rights in this section are granted without the need for additional compensation of any sort to you.
5. RESTRICTIONS ON ACCESS AND USAGE
When accessing and using the Website, you specifically agree to:
When accessing and using the Website, you specifically agree not to:
And, you will not attempt to do anything, or permit, encourage, assist, or allow any third party to do anything, prohibited in this list of bulleted items, or attempt, permit, encourage, assist, or allow any other violation of this Agreement.
If you are accessing the Website as an employer or principal, you authorize your employee or agent to extend on your behalf the permanent consent and authorization described above, and you acknowledge that your permanent consent and authorization will bind all of your employees and agents.
6. OWNERSHIP OF AND LICENSE TO USE OSCAR WINTER PROPERTIES.
Use of the Website. Except with respect to User Content, Oscar Winter and its suppliers own all rights, title and interest in the Website. The Website is protected by copyright, trademark, and other applicable laws. Subject to this Agreement, Oscar Winter grants you a limited license to use the Website solely for your personal non-commercial purposes. Any future release, update or other addition to the Website shall be subject to this Agreement. Oscar Winter, its suppliers and service providers reserve all rights not granted in this Agreement.
Trademarks. Oscar Winter's stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Products and the Website are the trademarks of Oscar Winter and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Website property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Products nor the Website.
7. RESTRICTIONS ON USE OF WEBSITE, INCLUDING THE PURCHASE OF ANY PRODUCTS ON THE WEBSITE.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website, nor the purchase of any Products on the Website nor any portion of them; (b) you shall not frame or use framing techniques to enclose any trademark, logo or Website images, text, page layout or form of Oscar Winter; (c) you shall not use any metatags or other "hidden text" using Oscar Winter's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Website to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Website, including the purchase of any Products on the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on the Products nor on or in the Website; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Website or use the Website in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Website, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Website , or interfering or attempting to interfere with use of the Website by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the Website. Any unauthorized use of the Website terminates the licenses granted by Oscar Winter pursuant to this Agreement.
8. THIRD-PARTY LINKS
You agree to indemnify and hold Oscar Winter, its corporate parents, shareholders, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the "Oscar Winter Parties") harmless from any claim, demand, damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or in connection with any claims concerning: (a) Your Content; (b) your use of or access to the Website or your use of any Products you purchase from us; (c) your violation of this Agreement; (d) your violation of any rights of another party, including without limitation any copyright, property, or privacy right or any third party agreement; or (e) your violation of any applicable laws, rules or regulations. As used in this section, "you" shall include anyone accessing the Website using your password.
Oscar Winter reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Oscar Winter in asserting any available defenses. This provision does not require you to indemnify any of the Oscar Winter Parties for any unconscionable commercial practice by such party or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Website, including the purchase of any Products on the Website.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Oscar Winter and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of this Agreement.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
10. DISCLAIMER OF WARRANTIES AND CONDITIONS
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THIS AGREEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY STATED IN THESE TERMS OR THE APPLICABLE PRODUCT WARRANTY, YOUR USE OF THE WEBSITE AND ANY PRODUCTS OFFERED THROUGH THE WEBSITE IS AT YOUR SOLE RISK, AND OUR PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OSCAR WINTER EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED. THESE DISCLAIMERS INCLUDE, WITHOUT LIMITATION:
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OSCAR WINTER IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR PRODUCTS OR SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
OUR PRODUCTS AND SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT OSCAR WINTER AND ITS USERS ARE NOT ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING OR OTHER PROFESSIONAL SERVICES OR ADVICE. OUR PRODUCTS AND SERVICES ARE NO SUBSTITUTE FOR PROFESSIONAL SERVICES OR ADVICE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, OSCAR WINTER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR, OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO:
IN EACH CASE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF OSCAR WINTER, ITS SUPPLIERS, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER OSCAR WINTER NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY SELLER, SHOPPER, OR OTHER USER OF THE WEBSITE.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT OSCAR WINTER IS LIABLE TO YOU EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO OSCAR WINTER BY YOU IN CONNECTION WITHOUT YOUR USE OF THE WEBSITE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A OSCAR WINTER PARTY FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY OSCAR WINTER'S GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY OSCAR WINTER'S FRAUD OR FRAUDULENT MISREPRESENTATION.
OSCAR WINTER ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OSCAR WINTER AND YOU.
12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
If you are a copyright owner or an agent thereof and believe that any content, information, or communication on the Website infringes upon your copyrights, you may submit a written notice of infringement pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the "DMCA"). All notices of infringement should be sent to the Designated Agent of Oscar Winter identified below and should include the following information: (a) an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest, (b) a description of the copyrighted work that you claim has been infringed, (c) a description of where the material that you claim is infringing is located on the Website, (d) your address, telephone number, and e-mail address, (e) a written 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.
Notices of infringement should be directed to the following Designated Agent of Oscar Winter:
Oscar Winter US LLC
Attn: Copyright Agent
360 Post Street San Francisco
If you submit a notice of infringement that knowingly materially misrepresents that any content, information, or communication on the Website is infringing upon a copyright, you may be held liable for damages and attorneys’ fees. If you believe that your content, information, or communication has been removed from the Website due to an erroneous claim of infringement, you may have remedies available to you under the DMCA.
You can terminate your use of the Website at any time by ceasing further use of the Website, but any unpaid amounts you owe to Oscar Winter for Products purchased will remain due. At its sole discretion, Oscar Winter may modify or discontinue the Website, or may modify, suspend or terminate your access to the Website, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Website, Oscar Winter reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Website is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Oscar Winter for Products purchased will remain due.
15. INTERNATIONAL USERS
The Website are controlled and offered by Oscar Winter from its facilities in the United States of America. Oscar Winter makes no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other countries do so at their own volition and are responsible for compliance with local law.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION ("ARBITRATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH OSCAR WINTER AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You and Oscar Winter agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. In the event of a dispute, Oscar Winter or you must provide the other notice of the dispute. This notice must provide a brief, written description of the dispute, the relief requested and the contact information of the party giving it. You must send any such notice to Oscar Winter by email to email@example.com and by U.S. Mail to Oscar Winter US LLC, 360 Post Street San Francisco CA 94103. To the extent that Oscar Winter has your contact information, it will send any such notice to you by U.S. Mail and your email address.
The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with one another, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Notwithstanding the foregoing, disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Website shall not be subject to arbitration, and the notice and good faith negotiation required by this paragraph shall not apply to these types of disputes.
Binding Arbitration. Except as provided herein, if we cannot resolve a dispute informally, any dispute will be resolved only by binding arbitration to be held in the U.S. state in which you reside. For residents outside the United States, arbitration shall be initiated in San Francisco, California. Oscar Winter and you further agree to submit to the personal jurisdiction of any state or federal court in San Francisco, California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the Chief Executive Officer, Oscar Winter US LLC, 360 Post Street San Francisco CA 94103. The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS' most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at www.jamsadr.comor by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state’s law.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Oscar Winter will pay the additional cost. Oscar Winter shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be asserted or conducted for an improper purpose or frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney’s fees and expert witness costs unless Oscar Winter is specifically required to pay such fees under applicable law.
If Oscar Winter’s or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted, through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
You or Oscar Winter may choose to pursue a claim in small claims court where jurisdiction and venue over you and Oscar Winter otherwise qualifies for such small claims court and where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to still provide Oscar Winter with advance notice by email to firstname.lastname@example.org and by U.S. Mail to Oscar Winter US LLC, 360 Post Street San Francisco CA 94103.
Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Oscar Winter. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND OSCAR WINTER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Oscar Winter are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: the Chief Executive Officer, Oscar Winter US LLC360 Post Street San Francisco CA 94103, or email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Oscar Winter username (if any), the email address you used to set up your Oscar Winter account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
Parents, Subsidiaries, Affiliates. This Arbitration Section will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Oscar Winter, or any employee, officer, director, or investor of Oscar Winter, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to this Agreement (such as with respect to their validity or enforceability), the Website, any person’s access to and/or use of the Website, and/or the provision of content, products, services, and/or technology on or through the Website.
Changes to This Section: Oscar Winter will provide thirty (30) days' notice of any changes to this section by posting on the Oscar Winter website or app, sending you a message, or otherwise notifying you when you are logged into your Account. Amendments will become effective thirty (30) days after they are posted on the Oscar Winter website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Website.
Severability. Subject to Section 17, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Oscar Winter.
17. WAIVER OF CLASS OR CONSOLIDATED ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Oscar Winter and you agree to resolve any dispute will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Oscar Winter and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Oscar Winter customers, and cannot be used to decide other disputes with other customers.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in San Francisco, California.
If any clause within this Class Action Waiver Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Class Action Waiver Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Oscar Winter, or any employee, officer, director, or investor of Oscar Winter, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Class Action Waiver section shall survive any termination of your account or the Website.
18. GENERAL PROVISIONS
Electronic Communications. You agree to receive communications from Oscar Winter electronically, such as emails, texts, mobile push notices, or notices and message on this Website, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Oscar Winter provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Oscar Winter's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Oscar Winter shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Exclusive Venue. Any claim or dispute between you and the Company that arises out of or is related to the Website and is not subject to arbitration shall be decided exclusively by a court of competent jurisdiction located in San Francisco County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of San Francisco County, California.
Governing Law. This Agreement and any dispute of any sort that might arise between you and the Company will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any conflict of law or other principles that provide for the application of the law of another jurisdiction.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Website or the Products must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Notice. Where Oscar Winter requires that you provide an e-mail address, you are responsible for providing Oscar Winter with your most current e-mail address. In the event that the last e-mail address you provided to Oscar Winter is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Oscar Winter's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Oscar Winter at the following address: Oscar Winter US LLC, the Chief Executive Officer, Oscar Winter US LLC, 360 Post Street San Francisco CA 94103. Such notice shall be deemed given when received by Oscar Winter by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any waiver must be in writing and signed by both you and Oscar Winter to be legally binding.
Severability. Subject to Sections 16 and 17, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer the Website, including the purchase of any Products on the Website except as authorized by U.S. law, the laws of the jurisdiction in which you used the Website or purchased any Products on the Website, and any other applicable laws. In particular, but without limitation, the Website, including any Products purchased from us may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Website or purchasing products from us, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Website nor the Products for any purpose prohibited by U.S. law.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Oscar Winter products and/or services, affiliate services, third party content, or products, or third party software.
Course of Conduct/Trade Practice. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement.
Section Titles. The section headings used herein are for convenience only and shall not be given any legal import.
Interpretation. You agree that this Agreement will not be construed against Oscar Winters by virtue of having drafted them.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Website or Products you have purchased from us, please contact us at firstname.lastname@example.org or 360 Post Street San Francisco CA 94103.
OSCAR WINTER PRODUCT WARRANTIES
Manufacturing Defects. Oscar Winter warrants that all of its items will be free from manufacturing defects for the life of the products. If you believe your item has a manufacturing defect, you may return it to us for inspection. If we determine your merchandise is damaged due to a manufacturing defect, we will repair the merchandise or, if we deem appropriate, replace the item. If the item is no longer available, Oscar Winter may, in its discretion, replace it with a like-kind item or allow a refund equal to the selling price of the original item or component.
This warranty is only available to the person who purchased the covered product from Oscar Winter. We do not provide warranties for damage due to normal wear, abuse, product loss, loss of stones or theft. Damage or loss that results from failure to obtain repairs necessary to maintain the integrity of the product are also not covered.
If we determine that the damage is not caused by a manufacturing defect, then we will notify you and let you know if repair services are available at cost or otherwise.
Additional Warranties. Oscar Winter furthers warrants that:
This warranty remains in effect during the life of the product, for so long as you own the product.
If you believe your item does not meet these warranties, you may return it (along with the original copy of the GIA certificate, if applicable) to us for inspect. If we determine the product does not meet these warranties, we will, at your option, (1) accept the return of the produce and provide you with a refund equal to the selling price of the original selling price of the original item or component or (2) replace the product with a product that meets or exceeds the characteristics warranted.
This warranty is only available to the person who purchased the covered product from Oscar Winter, and does not cover damage to the product that occurs after the date of sale.
RETURN AND EXCHANGE POLICY
We want you to be happy with your purchase. If you are not completely satisfied with your order and wish to make a return, for any reason, you may exchange or return your purchase within 30 days of delivery to you. Your item must be returned in new condition and returned with the diamond certificate (if applicable). Any products returned outside the return period or not in accordance with instructions will be returned to you.
To return an item, simply follow the steps below:
You acknowledge and agree that: