PLEASE READ THIS AGREEMENT CAREFULLY
Thank you for visiting Homepolish.com (“Homepolish”). This agreement (this “Agreement” or these “Terms and Conditions”) governs your use of this website (“Site”, and together with the services, features and content provided through the Site, the “Service”). If you are not satisfied with the terms contained in this Agreement, you may simply refrain from using this Site or the Service.
HOMEPOLISH WEBSITE TERMS AND CONDITIONS
The following terminology applies to these Terms and Conditions: “We”, “us” and “our” refer to Homepolish. “User”, “you” and “your” refers to you, the user, or site visitor. “Designer” refers to designer users of Homepolish. “Terms” refers to these Terms and Conditions. “Content” refers to the text, abstracts, metadata, software, scripts, graphics, logos, files, images, photos, sounds, music, videos, interactive features, information, documents and the like.
By your continued use of the Site, you are deemed to have read and accepted the following Terms and agree to comply with and be bound by all applicable laws and regulations, including United States export and re-export control laws and regulations.
It is your responsibility to review these Terms periodically. We may revise these Terms at any time without notice to you. If you have any questions about these Terms, please contact us at email@example.com. If at any time you find these Terms unacceptable or if you do not agree to these Terms, please do not use this Site.
PLEASE NOTE: THESE TERMS IN THE “DISPUTE RESOLUTION” SECTION CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS, AND PROHIBITS CLASS ACTION CLAIMS. IT AFFECTS HOW DISPUTES BETWEEN YOU AND HOMEPOLISH ARE RESOLVED. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
YOU AGREE THAT BY USING THE SITE AND REGISTERING FOR THE SERVICE YOU ARE AT LEAST 18 YEARS OF AGE, OR VISITING THE SITE UNDER THE SUPERVISION OF A PARENT OR GUARDIAN, AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.
1. DESIGN SERVICES
The Site is a communications platform for enabling connections between Users and Designers. Those certain design services requested by Users, which are to be completed by Designers, are hereinafter referred to as “Design Services.” Homepolish does not take part in the interaction between Users and Designers. Homepolish does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any work provided by Designers, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Users or Designers. Homepolish makes no representations about the suitability, reliability, timeliness, or accuracy of the Design Services requested and provided by Designers identified through the Site whether in public, private, or offline interactions. Users contract for Design Services directly with Designers. Homepolish will not be a party to any contracts for Design Services. Homepolish facilitates contracts by supplying a medium for the exchange of money.
Homepolish cannot confirm that each Designer is who they claim to be. Homepolish does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Site. When interacting with Designers, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER HOMEPOLISH NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITE OR ANY DESIGNER. HOMEPOLISH AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SITE OR THE DESIGN SERVICES.
RELEASE FOR THE DESIGN SERVICES
The Site is only a venue for connecting Users and Designers. Because Homepolish is not involved in the actual contact between Users and Designers or in the completion of the Design Services, in the event that you have a dispute with one or more Users or Designers, you release Homepolish (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Homepolish expressly disclaims any liability that may arise between Users of its Site, including Designers.
2. HOMEPOLISH SHOPPING LIST
Upon Vendor’s receipt of payment for a Product, Homepolish has no further involvement in the consummation of a contract between Users and Vendors and hereby disclaims all liability or responsibility for any matter arising out of a transaction between Users and Vendors. All orders placed through the Homepolish Shopping List are subject to and superseded by any Vendor terms and conditions governing shipment and receipt of Products.
3. USE OF THE SITE
Subject to the Terms, Homepolish hereby grants you a limited, nonexclusive, revocable, non-transferable and non-sublicensable right to access, display, and view the Site and the Content for personal, non-commercial use. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you.
User shall abide by all copyright notices, information, and restrictions contained in any Content accessed through this Site.
Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of its Content unless expressly permitted by Homepolish in writing. You may not make any commercial use of any of the information provided on the Site or make any use of the Site for the benefit of another business unless explicitly permitted by Homepolish in advance and in writing. Homepolish reserves the right to refuse service, terminate accounts, and/or cancel orders at its discretion, including, without limitation, if Homepolish believes that your conduct violates applicable law or is harmful to Homepolish’s interests.
Homepolish may assign you a password and account identification to enable you to access and use certain portions of this Site. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with the Terms, and Homepolish has no obligation to investigate the authorization or source of any such access or use of the Site.
YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY ASSIGNED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You shall immediately notify Homepolish of any unauthorized use of your password or identification or any other breach or threatened breach of this Site’s security.
4. MOBILE/WIRELESS POLICY
By providing your cell phone number and using the Service, you hereby affirmatively consent to our use of your cell phone number for calls and texts in order to perform and improve upon the Service. Homepolish will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving text messages. Under no circumstances will Homepolish, or its service providers be responsible for any text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number as a result of a promotion. If your carrier does not permit text alerts, you may not receive Homepolish text alerts. Pre-paid phones or calling plans may not be supported. You may receive a bounceback message for every message you send to us. We will not be liable for any delays in the receipt of any SMS messages, as delivery is subject to effective transmission from your network operator. SMS message services are provided on an “AS-IS” basis. Data obtained from you in connection with this SMS service may include your cell phone number, your provider’s name, and the date, time, and content of your messages. We may use this information to contact you and to provide the Services you request from us. You may opt-out of receiving text messages from us by emailing firstname.lastname@example.org
5. USER SUBMISSIONS
The Site may permit the upload, submission, and distribution of texts, images, material, information, and communications by you and other Users (“User Submissions” or “User Generated Content”). You understand that whether or not such User Submissions are published, Homepolish does not guarantee any confidentiality with respect to any such submissions.
By submitting the User Submission(s) to this Site, or displaying, publishing, or otherwise posting any content, including photographs, on or through the Site, you hereby grant Homepolish a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicenseable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submission(s) in connection with the Site and Homepolish’s (and its successors and assigns) business, including without limitation for promoting and redistributing part or all of the Site or Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Site a non-exclusive license to access the User Submission(s) through the Site, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Site. For clarity, the foregoing license grant to Homepolish does not affect your other ownership or license rights in your User Submission(s).
You shall not upload, submit, distribute, or otherwise publish through this Site any texts, images, communications, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties.
You shall not submit any “deep-link,” “page-scrape,” “robot,” “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process to access, acquire, copy, or monitor the Site or any portion of the Content.
You shall not (a) send or otherwise post unauthorized commercial communications (such as spam) on the Site or through the Service, (b) engage in unlawful multi-level marketing, such as a pyramid scheme, on the Site or through the Service; (c) solicit login information or User IDs or access an account belonging to someone else; (d) imply or state that any statements you make are endorsed by Homepolish, without the prior written consent of Homepolish, or (e) facilitate or encourage any violations of these Terms.
Content provided on this Site is solely for informational purposes. User Submissions or opinions expressed on this Site are that of the individual expressing such User Submission or opinion and may not reflect the opinions of Homepolish. Product representations expressed on this Site are not made by Homepolish.
You shall be responsible for your User Submissions and the consequences of posting or publishing them. You agree that Homepolish has no liability with respect to any User Submissions, including, without limitation, your own User Submissions. You hereby release Homepolish and its officers, directors, employees, agents, representatives and present and future affiliates, from any and all liability arising out of or relating to User Submissions or any part thereof.
Homepolish reserves the right to decide whether a User Submission is inappropriate or violates this Agreement, including but not limited to copyright infringement, violations of intellectual property law, pornography, obscene or defamatory material, or excessive length. Homepolish also reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages and User Submissions) by you, or to restrict, suspend or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice. Notwithstanding the foregoing, Homepolish assumes no responsibility for monitoring the Site for inappropriate content, or modifying or removing such content from the Site.
7. NO SOLICITATION
The Service may not be used to solicit for any other business, website or service. You may not solicit, advertise for, or contact in any form Designers for employment, contracting, or any other purpose not related to the Service facilitated through Homepolish, except as provided for in this Agreement.
You may not use the Service to collect usernames and/or email addresses of Users or Designers by electronic or other means without the express prior written consent of Homepolish.
8. BILLING AND PAYMENT POLICY
For all purchases and payments, fees or expenses associated with the Service, unless User uses a Gift Card as described below, Homepolish will charge User’s payment card according to the amount agreed upon between User and Homepolish, and User hereby authorizes Homepolish, or its third-party payment processors, to charge its payment card for such amounts. Homepolish retains the right, in its sole discretion, to place a hold on any payment for the Service.
Homepolish has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Homepolish, in each case in Homepolish’s sole discretion.
Users may share relevant payment card information through the Site in order to make purchases through the Service. We use a third-party payment processor to manage and process payments you make through the Service. Additional payment terms may be set by the third-party payment processor. The actual payment will not be completed until a third-party payment processor processes a Users’ payment. Delay is possible. The third party payment processor shall store relevant payment information until directed to complete the transaction.
By using the Site, you expressly authorize (i) the third-party payment processor to collect your payment information and access your transactions on the payment processor platform; (ii) the payment processor to exchange and process merchant data and your data with the third-party payment processor; and (iii) the third-party payment processor to exchange and process merchant and your data worldwide, internally or through a third party service provider, in each case as necessary to enable us to provide the Design Services.
YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR ALL ORDERS PLACED AND ALL PAYMENTS MADE THROUGH THE SERVICES. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR PAYMENT INFORMATION CURRENT, COMPLETE, AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). If the third-party payment processor does not receive payment from you for a purchase you make through the Services, you agree to pay all amounts due by you upon demand.
9. NO PURCHASE COMMITMENT OF DESIGN SERVICES
As a User of Homepolish, you may be able to choose from a customized selection of products and interiors that fits your look and style and meet with Designers. However, you are not obligated to purchase any of the Design Services offered under the Service or continue to purchase any additional Design Services, unless otherwise expressly agreed upon.
By submitting your email on our Site, you agree to receive emails, newsletters, special promotional offers and other communications from Homepolish. If you do not wish to receive such communications, please let us know by clicking the unsubscribe link in the email.
User will be liable for all transaction taxes on the services provided under this Agreement (other than taxes based on Homepolish’s income).
11. GIFT CARDS
Homepolish gift cards (“Gift Cards”) can be used to pay for purchases and payments, fees or expenses associated with the Service. Gift Cards are not replaceable if lost or stolen and have no expiration date, but in certain states, after a period of time, we may remit the cash associated with unused Gift Card balances to certain states pursuant to their abandoned property laws. Once we have remitted such cash to a state, if someone tries to redeem the Gift Card, it may no longer be redeemed and we may direct them to that state’s government instead. Gift Cards are not redeemable for cash except in the ten states where it is required by law to the extent noted below: California, Montana, Washington, Vermont, Maine, Rhode Island, West Virginia, Colorado, Massachusetts, and Oregon. If you are a resident of one of these states, and the balance on your Gift Card is less than the respective dollar amount below, you may redeem it for cash:
- California < $10
- Montana < $5
- Washington < $5
- Vermont < $1
- Maine < $5
- Rhode Island < $1
- West Virginia < $1
- Colorado < $5
- Massachusetts < $5
- Oregon < $5
Simply send your Gift Card along with a self-addressed envelope to Homepolish, Inc., 27 W 24th Street Fl. 2, New York, NY 10010, Attention: Gift Cards.
12. INTERNATIONAL ACCESS
This Site may be accessed from countries other than the United States. This Site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.
You are free to cancel your account any time by emailing email@example.com.We may terminate your account, without notice, for conduct that we believe violates this Agreement or our policies, is harmful to other Users or our business interests, or for an inactive account. If Homepolish terminates or suspends your right to use the Service for any of these reasons, you will not be entitled to any refund of unused balance in your account. In addition to terminating or suspending your account, Homepolish reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
All sections which by their nature should survive the cancellation of your account shall continue in full force and effect subsequent to and notwithstanding the cancellation of your account. For example, if you have unpaid fees or expenses for Design Services, products, or anything related to the Service at the time of your account cancellation, you are responsible for paying those fees and expenses.
14. CONFIDENTIAL INFORMATION
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Homepolish and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Homepolish in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Homepolish upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” shall mean any and all of Homepolish’s trade secrets, confidential and proprietary information and all other information and data of Homepolish that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
15. DISCLAIMER AND LIMITATION OF LIABILITY
WE HAVE NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU. YOU ACKNOWLEDGE THAT WE HAVE NO DUTY TO TAKE ANY ACTION REGARDING: (I) WHICH USERS GAIN ACCESS TO THE SERVICES; (II) THE CONTENT OR PRODUCTS YOU ACCESS VIA THE SERVICES; OR (III) HOW YOU MAY INTERPRET OR USE THE CONTENT OR PRODUCTS.
YOU ACKNOWLEDGE AND AGREE THAT HOMEPOLISH IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD HOMEPOLISH, ITS PRESENT AND FUTURE AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE, MISUSE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER OR DESIGNER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY HOMEPOLISH OR ITS PRESENT AND FUTURE AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
EXCEPT AS OTHERWISE PROVIDED IN THE STANDARD TERMS OF SALE THAT GOVERN THE SALE OF EACH PRODUCT ON THIS SITE, THE PRODUCTS OFFERED FOR SALE ON IT AND THE TRANSACTIONS CONDUCTED THROUGH IT ARE PROVIDED BY HOMEPOLISH ON AN “AS IS” BASIS. HOMEPOLISH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE EXCEPT AS PROVIDED HEREIN. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, HOMEPOLISH (AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS, AND CONTENT PROVIDERS) DISCLAIM ALL WARRANTIES ABOUT THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY AND SYSTEM INTEGRATION. THIS SITE MAY INCLUDE INACCURACIES, MISTAKES OR TYPOGRAPHICAL ERRORS. HOMEPOLISH DOES NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE OR FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, HOMEPOLISH (AND ITS PRESENT AND FUTURE AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR HOMEPOLISH SERVICES, INCLUDING, BUT NOT LIMITED TO INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT HOMEPOLISH OR ITS PRESENT OR FUTURE AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO HOMEPOLISH DURING THE MONTH PRIOR TO THE TIME SUCH CLAIM AROSE.
HOMEPOLISH DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE SERVICE.
You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: “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.”
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You may have other rights which vary from jurisdiction to jurisdiction.
You hereby agree to indemnify, defend, and hold harmless Homepolish, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and present and future affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with your use, misuse or inability to use the Service, violation of these Terms, or infringement by you (or any third party using your account or identity in the Services) of any intellectual property or other right of any person or entity. Homepolish reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification, in which event you will assist and cooperate with us in asserting any available defenses. You will not, in any event, settle any claim or matter without the written consent of Homepolish.
17. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America.
18. DISPUTE RESOLUTION
a.) INFORMAL NEGOTIATIONS.
To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Homepolish agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Homepolish. Homepolish’s address for such notices is Homepolish, Inc., 27 W 24th Street Fl. 2, New York, NY 10010 Attention: Legal.
b.) BINDING ARBITRATION.
If you and Homepolish are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Service (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If your claim for damages does not exceed $10,000, Homepolish will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Homepolish may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
c.) EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION.
Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in New York, New York with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.
d.) WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
You and Homepolish agree that any arbitration will be limited to the Dispute between Homepolish and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND HOMEPOLISH ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Homepolish otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section 18 (Dispute Resolution) will be deemed null and void.
LOCATION OF ARBITRATION.
Arbitration will take place in New York, New York. You and Homepolish agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the New York state and Federal courts located in New York, New York have exclusive jurisdiction and you and Homepolish agree to submit to the personal jurisdiction of such courts.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 18 (Dispute Resolution) will be null and void. This Section will survive the termination of your relationship with us.
19.) SPECIAL PROMOTIONS
Homepolish may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Homepolish, and can be activated, modified or removed at anytime by Homepolish without advance notification and the liability of any of Homepolish’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 15 (Disclaimer and Limitation of Liability) section of these Terms.
20.) INTELLECTUAL PROPERTY RIGHTS
This Site is owned and operated by Homepolish. All right, title and interest in and to the Content provided on this Site are owned either by Homepolish or by our respective third party authors, developers or vendors (“Third Party Providers”), excluding User Generated Content that Homepolish has the right to use. Except as otherwise expressly provided by Homepolish, none of the Content may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted or distributed in any way and nothing on this Site shall be construed to confer any license under any of Homepolish’s intellectual property rights, whether by estoppel, implication or otherwise. You must contact firstname.lastname@example.org if you have any questions about obtaining such licenses. Homepolish does not sell, license, lease or otherwise provide any of the Content other than those specifically identified as being provided by Homepolish. Any rights not expressly granted herein are reserved by Homepolish.
Homepolish owns or has the right to use all Content, as well as the coordination, selection, arrangement and enhancement of such Content as a Collective Work under the United States Copyright Act, as amended. The Content is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Service other than as provided herein without Homepolish’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Content, other than as permitted therein, is expressly prohibited without the prior permission of Homepolish and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Homepolish, including without limitation “Homepolish”, “A Designer For Every Home”, “Champagne Design on a Beer Budget”, “Love Where You Live”, “$50, 50 minute design consultation”, “Beautiful, Bespoke Interior Design That Won’t Break the Bank”, “Beautiful, Affordable Interior Design by the Hour”, “Personal interior design by the hour”, the Homepolish logo, all images and text, and all page headers, custom graphics and button icons are service marks, trademarks, and/or trade dress of Homepolish. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
21. COPYRIGHT COMPLAINTS
Homepolish respects the intellectual property of others, and expects Users and Designers to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringe upon your copyright or other intellectual property right, please send the following information to Homepolish ‘s Copyright Agent at: Homepolish, Inc., 27 W 24th Street Fl. 2, New York, NY 10010 or contact email@example.com:
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Service where the material you claim is infringed is located. Include enough information to allow Homepolish to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
22. TYPOGRAPHICAL ERRORS
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, Homepolish shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. Homepolish shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, Homepolish shall issue a credit to your credit card account in the amount of the charge.
You agree that Homepolish’s remedy at law for any actual or threatened breach of this Agreement would be inadequate and that Homepolish shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that Homepolish may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys’ fees.
No right or remedy of Homepolish shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys’ fees and expenses.
No instance of waiver by Homepolish of its rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver.
24. LINKS TO THIRD PARTY SITES
This Site may contain links to websites controlled by parties other than Homepolish (each a “Third Party Site”). Homepolish may work with certain partners and affiliates whose sites are linked with Homepolish. Homepolish is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third Party Site, any web site accessed from a Third Party Site or any changes or updates to such sites. Homepolish makes no guarantees about the content or quality of the products or services provided by such sites. Homepolish is not responsible for webcasting or any other form of transmission received from any Third Party Site. Homepolish is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Homepolish of the Third Party Site. You acknowledge that you bear all risks associated with access to and use of content provided on a Third Party Site and agree that Homepolish is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable Third Party Site if you have any concerns regarding such links or the content located on any such Third Party Site.
25. REFERRAL TERMS
From time to time, Homepolish may offer Users the opportunity to make referrals or redeem referral codes, and obtain certain credits or discounts (“Credits”), to be determined by Homepolish in its sole discretion (collectively, the “Program”). In addition to any specific rules and descriptions provided to you, which are incorporated herein, the following terms in this section apply.
Users may not participate in the Program where doing so would be prohibited by any applicable law, rule, or regulations. Homepolish reserves the right, in its sole discretion at any time, to void any Credits, or to cancel, suspend, terminate or modify the terms in this section or any aspect of the Program, with or without notice to you. Homepolish also reserves the right, in its sole discretion, to suspend or terminate your participation in the Program at any time, with or without cause, with or without notice, effective immediately, including without limitation if Homepolish deems or suspects any violation of these terms and conditions, cheating, fraud or tampering with the operation of Program.
How to Make a Referral
If you would like to make a referral under the Program, you may use the unique referral code provided to you by Homepolish (“Referral Code”) in accordance with the specific rules and descriptions provided by Homepolish. You may not use spam or send unsolicited emails to persons you don’t personally know to collect referrals or collect referrals by posting on online venues, and you may not hold yourself out as an affiliate or distributor of Homepolish. Use of any automated system, script, or macro to participate is strictly prohibited and will result in disqualification. You may redeem any Credits you receive from making referrals in accordance with the specific rules and descriptions provided by Homepolish.
I was given a Referral Code – How Do I Use it?
If you are eligible to use a Referral Code, you may use it on the Service in accordance with the specific rule and descriptions provided by Homepolish.
Credits, the number of Credits, and the redemption value of Credits and any restrictions on the use of Credits, are issued at Homepolish’s sole discretion. Credits and referrals are subject to verification at any time, and all of Homepolish’s decisions are final and binding. Any Credits issued shall automatically expire in accordance with the specific rules and descriptions provided to you. Any remaining balance on the purchase amount for a given eligible purchase after Credits are fully redeemed is your sole responsibility. Once used, Credits will not be restored or refunded under any circumstances, even if you return or exchange the applicable purchase corresponding to the order on which such Credits were redeemed. Credits are valid for redemption on the Service only and are void where prohibited or restricted by law. You cannot combine your Credits with any additional coupons, offers or promotional codes. Credits are promotional coupons and are not legal tender. Credits are non-transferable, non-exchangeable, have no monetary value and cannot be used for cash back or sold. Upon termination of the Program or any portion thereof for any reason, or upon cancellation of a User’s account for any reason, any unredeemed Credits accumulated by you are forfeited.
By participating in the Program, you agree to defend, indemnify, release and hold harmless Homepolish, its affiliates, suppliers, partners, and each of Homepolish’s and their respective parent companies, subsidiaries, affiliates, partners, employees, contractors, directors, officers, agents, suppliers and representatives (collectively, the “Released Parties”), from any and all liabilities, claims, damages, injury, loss, harm, cost or expenses, including without limitation property damage, personal injury and/or death, that arise from or relate to in any way the Program and/or use or misuse of Credits. TO THE EXTENT ALLOWED BY LAW, THE RELEASED PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY INJURIES, LOSSES, OR DAMAGES (DIRECT AND INDIRECT) OF ANY KIND RELATING TO THE PROGRAM OR THE CREDITS. THE CREDITS ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY SORT, EXPRESS OR IMPLIED.
Participation in the Program may require you to provide personal information, such as name and e-mail address. By participating in the Program, you agree to receive communications from Homepolish and/or from our partners that help operate and maintain the Program.
26. ADDITIONAL TERMS
By continuing your account, you accept and agree to the terms of this Agreement and any changes made by us to it. If you do not wish to be bound by this Agreement, please see above for how to cancel your account. Your edits or changes to either the online or offline versions of this Agreement or an account offer will not be effective, regardless of form.
Updated March 2018