Revised January 8, 2021
If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
OUR WEBSITE USERS
Our Website has several types of users:
a. Visitors. Visitors to our Website, as the term implies, are people who do not register for an account, but want to explore the Website (“Visitors”). No login is required for visitors to the Website. Visitors can purchase products through the Website, access all publicly-available content and features of the Website, post Comments and other User-Generated Content (each as defined below) on the Website, sign up for our various programs, sign up for alerts and other notifications, and contact us using the contact link on the Website.
b. Registered Users and Accounts. Registered users are individuals that create an account on our Website (“Registered Users”). Registered Users can do all the things that Visitors can do, and: (i) access exclusive content available only to Registered Users; and (ii) create, access, manage, and update their own personal accounts on the Website.
If you wish to become a Registered User, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Website using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.
Unless otherwise noted, all materials on this website, including text, images, illustrations, icons, photographs, video clips and other materials, and the copyrights, trademarks, service marks, trade dress and other intellectual property in such materials ("Content") are owned, controlled or licensed by JML. Content is provided solely for your personal, noncommercial use. No right, title or interest in downloaded Content is transferred to you as a result of any such downloading or copying. We and our licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit Content in any way. We reserve the right to pursue all legal remedies for any commercial exploitation of Content.
The trademarks, service marks, and logos of JML (the “JML Trademarks”) used and displayed on the Website are registered and unregistered trademarks or service marks of JML. Other company, product, and service names located on the Website may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with JML Trademarks, the “Trademarks”). Nothing on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of JML Trademarks inures to our benefit.
Elements of the Website are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
We do not claim ownership to any content, including text, images, illustrations, icons, photographs and other materials, you submit or make available through this Website (hereinafter "User-Generated Content"). All User-Generated Content posted, submitted or otherwise transmitted to this Website remains the sole responsibility of the person who originated such content. YOU, AND NOT JML, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER-GENERATED CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT. We take no responsibility for such User-Generated Content. You retain all copyrights and other intellectual property rights in and to your own User-Generated Content. You do, however, grant JML a perpetual, irrevocable, non-terminable, worldwide, royalty-free, and non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works, sub-license, and otherwise use or exploit (including for profit) your User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. . You hereby represent, warrant and covenant that any User-Generated Content you provide does not include anything to which you do not have the full right to grant the license stated above. We are not obligated to publish any User-Generated Content on our Website, and we reserve the right to remove any User-Generated Content at any time in our sole discretion, with or without notice.
COMMENTS, SUGGESTIONS AND SUBMISSIONS
Although we encourage you to communicate with us, we do not want you to, and you should not, send us any content that contains confidential information. Any comments, suggestions, ideas, submissions or other communications submitted or offered to us ("Comments") will be and remain the property of JML. Submission of Comments, whether via email, postal mail, or otherwise, will constitute an assignment to JML of all worldwide rights, title and interest to all intellectual property rights in Comments. We will be entitled to use, reproduce, disclose, publish and distribute Comments (or any part thereof, in edited or modified form) for any purpose whatsoever, without compensation to you.
MARKETING TEXT MESSAGES
If you elect to receive marketing text messages from us, either via our Website or by sending us a text message indicating your consent, you are providing your prior express written consent to receive recurring marketing or promotional SMS text messages from us (each, a “Text Message”) sent through an automatic telephone dialing system. These may include purchase cart abandon messages. Message frequency varies. This text message service is optional and is not a condition for purchase.
You can opt out of receiving any further Text Messages from us at any time by replying “STOP” to any Text Message you receive from us. For help, reply “HELP” to any Text Message you receive from us or email firstname.lastname@example.org. In addition to any fee of which you are notified, your mobile provider's message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence according to your individual rate plan provided by your wireless carrier. 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 we or our affiliates be responsible for any SMS messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit SMS messages, you may not receive the Text Messages.
RESTRICTIONS ON USE
The Website is only available for individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
Additionally, by accessing and/or using the Website, you agree as follows:
- You will not upload, post, e-mail, transmit, or otherwise make available any User-Generate Content or provide any Comments that:
- infringe any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- are defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another's privacy, promote violence or illegal activity, or contain hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
- disclose any sensitive information about another person, including that person's e-mail address, postal address, phone number, credit card information, or any similar information.
- You will comply with all applicable laws in your use of the Website and will not use the Website for any unlawful purpose;
- You will not access or use the Website to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with, or attempt to interrupt the proper operation of, the Website through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content, data, files, or passwords related to the Website through hacking, password or data mining, or any other means;
- You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Website;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Website;
- You will not use any robot, spider, scraper, or other automated means to access the Website for any purpose without our express written permission;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
- You will not allow anyone to access and use your account;
- You will not resell, distribute, or sublicense the Website or use it for the benefit of anyone other than you or your School;
- You will not remove or modify any proprietary markings or restrictive legends placed on the Website; and
- You will not introduce, post, or upload to the Website any Harmful Code. As used herein, “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Website, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Website to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Website.
We reserve the right, in our sole and absolute discretion, to deny you access to the Website, or any portion of the Website, without notice, and to remove any content that does not adhere to these restrictions on use.
PRODUCT DISPLAY AND INFORMATION
We attempt to display the products featured on our Website as accurately as possible. However, we cannot guarantee that your monitor's display of merchandise color, texture or detail will be accurate. On occasion, the Website may contain incomplete information, typographical errors, or inaccuracies as to description, pricing, promotions, sizing, fabrication, color or availability. We reserve the right to correct errors at any time without prior notice (including after your order has been placed). Prices are quoted in U.S Dollars and are valid only in the United States. We reserve the right to change pricing at any time.
We reserve the right to refuse any order placed with us or to limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card and/or orders that use the same billing and/or shipping address. We reserve the right to limit or prohibit orders that appear, in our sole judgment, to be placed by dealers, resellers or distributors. If we limit or cancel an order, we will attempt to notify you through the email, billing address or telephone number you provided when the order was placed.
The purchase and use of J. McLaughlin Gift Cards is governed by our Gift Card Terms.
Our policies regarding shipping and returns can be found on the Website and are hereby incorporated by reference.
LINKS TO OTHER WEBSITES
The Website may contain links to third-party websites (“External Websites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Websites. The content of such External Websites is developed and provided by others. You should contact the site administrator or webmaster for those External Websites if you have any concerns regarding such links or any content located on such External Websites. We are not responsible for the content of any linked External Websites and do not make any representations regarding the content or accuracy of materials on such External Websites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Websites, you do so at your own risk.
THE WEBSITE, AND ALL CONTENT AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR THROUGH THE WEBSITE ARE PROVIDED BY JML ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. JML EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE AND THE CONTENT, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, JML DOES NOT WARRANT THAT: (1) THE INFORMATION ON THE WEBSITE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKE IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR SERVICE PROVIDER INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE OR THE CONTENT SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS (US $100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
a. Representations and Warranties. You hereby represent, warrant, and covenant that:
- You own or have the necessary licenses, rights, consents, and permissions (collectively, “Permissions”) to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User-Generated Content, and any other works that you incorporate into your User-Generated Content and all the rights necessary to grant the Permissions you grant hereunder;
- You will comply with all applicable laws in your use of the Website.
b. Indemnification. You shall indemnify, defend, and hold harmless JML, its affiliates, and its and their respective officers, managers, partners, employees, and agents from and against any and all losses, civil penalties, liabilities, damages, judgments, costs, and expenses, including reasonable attorney's fees and court costs incurred in connection with any proceeding, claim, or action arising out of or related to (i) your breach of this Agreement or applicable law in your use of the Website, (ii) your misuse of the Content or the Website; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right.
DIGITAL MILLENNIUM COPYRIGHT ACT
JML respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or User-Generated Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
236-250 Greenpoint Ave.
Building 6, 2nd Floor
Brooklyn, NY 11222
Attn: Copyright Agent
If you believe that your work has been copied on the Website in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) 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; (v) 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 (vi) 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.
In the event of a dispute arising under or relating to this Agreement, the Content, Text Messages, or the Website (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT'S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS' Streamlined Arbitration Rules and Procedures. All applicable JAMS' rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator's award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. All such claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of New York.
CHOICE OF LAW
This Agreement will be construed in accordance with the laws of the State of New York, without regard to any conflict of laws provision.
The Website is based in the United States. We make no claims concerning whether the Website is accessible, or whether Content may be downloaded, viewed, or be appropriate for use outside of the United States. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
If you have questions about the Agreement or our Website, please contact us via email at email@example.com.
© 2021 J.McLaughlin, LLC. All Rights Reserved.