USER LICENSE AGREEMENT
FashCon, offers to you, the individual fashion buyer and/or seller and/or subscriber as identified in the execution section below, a license for use of Fashion Constellate, its fashion resale marketplace (“Marketplace”) and Fashion Conservatory, its archive (“Archive,” collectively with Marketplace, “Services”) through its websites (collectively, “Website”). The Services made available to you are merely licensed, and not sold, to you for use only under the terms of this End User License Agreement (“Agreement”). FashCon reserves all rights not expressly granted to you herein.
1. Ownership. FashCon is the owner of the Services and all associated intellectual property rights. This includes but is not limited to any and all instructions or statements in machine-readable format, including source code; related databases in machine-readable format; related materials, including documentation, whether in machine-readable or printed form; and any derivatives and copies of the foregoing.
2. License: Upon acceptance of the terms of this Agreement and payment of appropriate fees, FashCon hereby grants to you, the fashion buyer and/or seller and/or subscriber as identified in the execution section below, a nontransferable, non-exclusive license to use the Services and all related documentation during the term of this Agreement as follows:
a. Your use of the Services is limited to use on behalf of the individual account holder as identified in the execution section below per license fee paid.
b. Use of any documentation or printed materials regarding the Services shall be limited to supporting the use of the Services.
3. Marketplace and Archive Operations: The terms of how the Services operate may be found here: FashCon Community Requirements
a. Merchandise Permitted, Prohibited, or Restricted
b. Fashion Conservatory Fees
c. Listing Policies
d. Selling Policies
e. Buying Policies
f. Payment Policies
g. Shipping Policies
h. Return Policies
i. Feedback Policies and
j. User Dispute Resolution Policies.
4. Restrictions on Use:
a. You will not copy or duplicate, or permit anyone else to copy or duplicate, any of the Services, whether such Services is in written, graphic, magnetic, executable, or any other form.
b. You will not provide or make the Services available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement.
c. You will not create or attempt to create, or permit others to create or attempt to create, any software based on or similar the Services by disassembling, reverse engineering, or otherwise, the source programs, the logic design, or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement.
d. You agree to notify FashCon in a timely manner if you obtain information as to any unauthorized possession, use, or disclosure of the Services by any person or entity, and further agree to cooperate with FashCon at FashCon’s expense in protecting FashCon’s proprietary rights.
e. You represent, warrant, and covenant that you will not upload, post, transmit, distribute, or otherwise publish through the Services any materials which restrict or inhibit any other user from using and enjoying the website; are unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or indecent; constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate the law; violate, plagiarize, or infringe the rights of any third party including, without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other right of any third party; contain a virus or other harmful or potentially harmful component; contain any information advertising of any kind; and/or constitute or contain false or misleading indications of origin or statements of fact.
5. Maintenance and Updates: FashCon may provide normal and reasonable maintenance and updates of the Services at its sole discretion. If FashCon has reason to believe that such updates may interfere with your use of the Services, FashCon will make best efforts to notify you in advance.
a. FashCon may terminate this Agreement for any reason at any time without advance notice.
b.Either party may terminate this Agreement for failure of the other to comply with the terms and conditions of this Agreement.
c. This Agreement shall automatically terminate should you, your successors, or your permitted assigns fail to pay the appropriate fee in the time required, suspend business, make an absolute assignment of the bulk of your assets for the benefit of creditors, consent to the appointment of a trustee, custodian, or receiver, or be declared insolvent or bankrupt; or if a trustee, custodian, or receiver is appointed for you for a substantial part of your property without your consent and is not discharged within 60 days of such appointment; or if bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings are instituted by or against you and are not dismissed within 60 days of the commencement thereof.
d. Effect of Termination. Termination of this Agreement with respect to any portion of Services will terminate all of your rights to such Services granted hereunder. Termination shall not relieve you of your obligations relating to the restrictions on use contained in this Agreement. You will not receive a refund of any fees already paid to FashCon but shall not thereafter incur additional fees.
e. Obligations Upon Termination: Your obligations under the section entitled Restrictions on Use shall continue following termination of the Agreement. FashCon has no obligation to maintain your data associated with the Services but may do so for so long as it deems reasonable in its sole discretion.
8. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY SERVICES PERFORMED OR PROVIDED BY THE SERVICES (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND FASHCON HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FASHCON DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES OR ASSOCIATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FASHCON OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES OR REQUIREMENTS SERVICES PROVE DEFECTIVE, YOU ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL FASHCON BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF FASHCON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall FashCon’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount paid by you to obtain the license granted herein. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
10. Notice of Rights: CERTAIN COUNTRIES, STATES, AND/OR PROVINCES PROHIBIT THE EXCLUSION OR LIMITATION OF CERTAIN CONDITIONS, WARRANTIES, OR GUARANTEES, AND/OR DO NOT ALLOW PRODUCTS OR SERVICES TO BE SOLD WITH NO WARRANTIES OR GUARANTEES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE SECTIONS ABOVE ENTITLED “NO WARRANTY” AND “LIMITATION OF LIABILITY” MAY NOT APPLY TO YOU. ONLY THOSE EXCLUSIONS AND LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, FASHCON’S LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE ENFORCEABILITY OF THESE LIMITED WARRANTIES MAY VARY BASED ON THE LOCAL LAWS APPLICABLE TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS DEPENDING ON WHERE YOU LIVE.
THIS AGREEMENT IS NOT INTENDED TO AND DOES NOT: (I) CHANGE OR EXCLUDE ANY STATUTORY CONSUMER RIGHTS THAT CANNOT BE LAWFULLY CHANGED OR EXCLUDED; OR (II) LIMIT OR EXCLUDE ANY RIGHT YOU HAVE AGAINST THE PERSON WHO SOLD THE PRODUCT TO YOU IF THAT PERSON HAS BREACHED ANY SALES CONTRACT WITH YOU. YOU AGREE TO USE THE SERVICES IN COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING LOCAL LAWS OF THE COUNTRY OR REGION IN WHICH YOU LIVE OR IN WHICH YOU DOWNLOAD OR USE THE SERVICES.
NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS, OR MODIFIES ANY CONDITION, WARRANTY, GUARANTEE, RIGHT, OR REMEDY IMPLIED OR IMPOSED BY ANY APPLICABLE LAWS WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED, OR MODIFIED. If any condition, warranty, or guarantee is implied into this Agreement or imposed on FashCon under applicable laws and cannot be excluded, but FashCon has a choice of a remedy, then FashCon’s liability for breach of the condition, warranty, or guarantee is limited to one or more of the following, at FashCon’s option: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, or refunding the payment for the goods if it would be unreasonable to expect the products to be repaired; or (b) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
11. Export: You shall comply with all applicable laws and regulations in connection with your use of the Services. This includes that you acknowledge and agree that the Services incorporates products and/or technical data that may be subject to legal and regulatory controls, including restrictions on export and re-export. You warrant and represent that you have not obtained the Services due to an export, re-export, or import in violation of United States or other applicable laws or regulations in the United States and other countries, that you are not identified on any denied persons or other list published by the country in which you are located, that you have not caused the Services to be located or made available Group E country as defined by the United States, and that you have not used and will not use the Services in connection with the development, manufacture, or use of nuclear fuel or weapons, missiles, or chemical or biological weapons. You will not export, re-export, or import, directly or indirectly, the Services prior to securing any and all necessary approvals from your governmental authority as may be required.
a. Waiver. No waiver of any breach of this Agreement will form a waiver of any subsequent breach of the same or any other provision.
b. Severability. If any provision of this Agreement is declared or found illegal, unenforceable, or void, then all parties will be relieved of all obligations arising under such provision to the extent that such provision is illegal, unenforceable, or void, it being the intent and agreement of the parties that this Agreement will be deemed amended by modifying the provision to the minimum extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement will not be affected by the declaration or finding and can be substantially performed, then each provision not so affected will be enforced to the extent permitted by law.
c. Entire Agreement. This Agreement makes up the entire agreement of the parties, superseding in all respects all prior proposals, negotiations, understandings and other agreements, oral or written, between the parties.
d. Amendment. This Agreement may be amended by FashCon at any time for any reason. Notice of the same will be provided through posting the revised Agreement to the Website.
e. Notices. Any notice given pursuant to this Agreement may be given by (1) personal delivery; (2) deposit in the mail, prepaid, return receipt requested; (3) deposit with a recognized courier company, prepaid, return receipt requested; or (4) facsimile or electronic transmission, in each case to the last address or number, as the case may be, of which the sending party has received actual or constructive notice. Any such notice will be deemed to be received (1) when delivered, if given pursuant to clause (1) of the previous sentence; (2) on the earlier of (a) the fourth day after deposit, or (b) the time delivery is verified, if given pursuant to clauses (2) or (3) of the previous sentence; or (3) when received, if given pursuant to clause (4) of the previous sentence.
f. Interpretation. Headings used in this Agreement are for convenience only and will not be deemed to be operative text. Terms of gender will be deemed interchangeable, as will singular and plural terms, in each case unless the context otherwise requires.
g. Applicable Law. This Agreement will be governed by the internal law of the State of North Carolina without regard to conflict of law.
h. Arbitration. Any dispute arising out of or relating to this Agreement, or a breach thereof, shall be solely and exclusively determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules. Any such arbitration shall take place exclusively in Buncombe County, North Carolina, and the language of the arbitration shall be English. The arbitration shall be conducted by a single arbitrator and the decision of the arbitrator shall be final, conclusive and binding on the parties. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. FashCon and you shall each pay one-half of the costs and expenses of any arbitration, and the substantially non-prevailing party, as determined by outcome of the arbitration, shall be liable for both parties’ attorneys’ fees and costs. You acknowledge that, without this provision, you would have had a right to litigate a dispute through a court before a jury or judge and that you have expressly and knowingly waived those rights, instead agreeing to resolve disputes exclusively through binding arbitration.
i. Indemnification. To the extent which you breach this agreement in such a way as to cause harm to a third-party (e.g., copyright infringement), you shall indemnify, hold harmless, and defend FashCon from any costs, expenses (including reasonable attorney fees), losses, damages, or liability incurred due to such harm.
j. Further Assurances. The parties will perform all such further acts, provide such further documents or written assurances, and execute such further documents as they reasonably require or deem necessary to carry out the acts and transactions contemplated by this Agreement.
AUTOMATIC RENEWAL NOTICE: Where applicable you are entering into a subscription agreement with FashCon that shall automatically renew each period. You acknowledge and agree that the payment information you provide herein may be charged each month for your FashCon Services subscription in the amount identified below. In the event you wish to cancel your subscription, you may do so at any time by logging into your account and updating your membership settings or by contacting FashCon Support Page with your account details and cancellation request.