Data Protection & Privacy Review For Californiadesignden 24 Oct 2021
- Agreement Between You and ‘CALIFORNIA DESIGN DEN’.
- General Terms & Conditions.
- Service Availability & Support.
- Orders & Billing.
- CALIFORNIADESIGNDEN’s Proprietary Rights.
- Service Use Restrictions.
- Your Content & License from You.
- Exclusion of Warranties.
- Limitation of Liability.
- Changes to Service.
- Termination of Service.
- Governing Law and Venue.
- Third Party Websites.
- Miscellaneous Legal Terms.
1.2 In order to use the Service you must agree to these Terms. You may agree to the terms by clicking the “I Accept” box, or by actually using our Services.
You acknowledge and agree that CALIFORNIADESIGNDEN will treat your use of the Service as acceptance of these Terms from the time you first use the Service.
1.3 Please note that we offer the Services “AS IS” and without warranties. If you use the Services on behalf of an individual or entity other than yourself, you represent that you are authorized by such individual or entity to accept this Agreement on such individual’s or entity’s behalf.
1.4 Please note that while we make reasonable efforts to provide you with accurate content, we make no guarantees, representations or warranties, whether expressed or implied, with respect to quality of content, benefit information, or any other content available through the services or the website. in no event shall we be liable to you or anyone else for any decision made or action taken by you in reliance on any such content. furthermore, we do not in any way endorse or recommend any individual or entity listed or accessible through the services.2. General Terms & Conditions
2.1 Our company is registered legally in California (USA), and we have the required governmental permissions to provide our services.
2.3 You are responsible for maintaining the security of your usage to this website. The Company cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
2.4 You agree that to the extent you provide personal information to CALIFORNIADESIGNDEN it will be true, accurate, current, and complete and that you will update all personal information as necessary. The use of company logos, advertisements, web addresses, contact information, pictures of celebrities or the unauthorized use of images owned by others is prohibited.
2.5 You are responsible for all content posted and activity that occurs under your identity.
2.6 You may not use the Service for any illegal purpose or to violate any laws in your jurisdiction (including but not limited to copyright laws).
2.7 You must provide your legal full name, a valid email address, and any other information requested in order to complete the purchase process.
2.8 You can seek removal of content posted on our website, by contacting us,
2.9 If you request to delete any personal information that you have provided. Within 30 days we will review and proceed your request, and this information will be permanently removed from our database.
The removal of the information may be deletion or a completely irreversible disfiguring for the information.
2.10 The Company reserves the right to refuse service to anyone for any reason at any time.
By submitting or sending Submitted Materials to us, you agree that your Submitted Materials will not violate any right of any third-party, including Payments, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
2.12 While most individuals who use CALIFORNIADESIGNDEN have successful experiences, from time to time we do receive reports of people attempting to scam or defraud the community.
2.13 Your use of the Service is at your sole risk. The service is provided on an “as is” and “as available” basis.
2.14 You understand that the Company uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
2.15 You must not modify, adapt or hack the website.
2.16 You must not modify another website or Website so as to falsely imply that it is associated with the Service or the Company.
2.17 You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by the Company.
2.18 Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Service customer, Company employee or officer will result in immediate action by the company.
2.19 You understand that the technical processing and transmission of the Service, including your content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
2.20 You expressly understand and agree that the Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) or any other matter relating to the service.
2.22 The failure of the Company to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and the Company and governs your use of the Service, superseding any prior agreements between you and the Company (including, but not limited to, any prior versions of the Terms of Service).
2.23 Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes.
2.24 The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, any part of the Service with or without notice.
2.25 If you would like to sign and execute a copy of the DPA with CALIFORNIADESIGNDEN, you can do so by making your request at helpdesk@CALIFORNIADESIGNDEN.com . Include your name and the email address.
Questions about the Terms of Service should be sent to helpdesk@CALIFORNIADESIGNDEN.com.3. Service Availability & Support
3.1 CALIFORNIADESIGNDEN may temporarily suspend your access to any portion or all of the Service and your Content (as defined below) if CALIFORNIADESIGNDEN reasonably determines that: (a) there is a threat or attack on the Service (including a denial of service attack) or other event that may create a risk to the Service, you or any other Service user; (b) your use of the Service or your Content disrupts or poses a security risk to the Service or any other Service user, may harm CALIFORNIADESIGNDEN’s systems or any other Service user, or may subject CALIFORNIADESIGNDEN or any third party to liability; (c) you are using the Service for fraudulent or illegal activities; (d) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) you are using the Site, Service or other CALIFORNIADESIGNDEN property in breach of these Terms; (f) you are in default of your payment obligations hereunder; or (g) there is an unusual spike or increase in your use of the Service (collectively, ”Service Suspensions'”). CALIFORNIADESIGNDEN will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to you (including notices posted on the Site or sent to your e-mail address) and to provide updates regarding resumption of the Service following any Service Suspension. CALIFORNIADESIGNDEN will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
3.2 CALIFORNIADESIGNDEN shall terminate your access to any portion or all of the Service and your Content upon termination of contract or non-renewal of Services.4. Orders & Billing
4.1 Product Availability and Accuracy
All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Website is void where prohibited.
We make a reasonable effort to display the accurate colors and images of our products online, however, we cannot guarantee that your computer monitor’s display of color will be accurate and we are not responsible for variances in colors or shades attributable to your monitor settings.
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy
While we endeavor to keep our Website up to date, the information made available on this Website is provided for general information purposes only and should not be relied upon or used as the sole basis for making decisions without consulting CALIFORNIADESIGNDEN or any relevant third party for more accurate, complete, or timely information. You acknowledge that any reliance on the information or material provided on this Website is at your own risk.
Please note that our Website may contain certain historical information which is not current and is provided for your reference only. We reserve the right to modify the contents of this Website at any time, but we have no obligation to update any information on our Website. You agree that it is your responsibility to monitor changes to our Website and to contact us with any questions.
We reserve the right to refuse service to anyone for any reason at any time. We further reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer.
We reserve the right to refuse any order you place with us. We may, in our sole discretion, 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. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail, billing address and/or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
4.3 Accuracy of Billing Information
You agree to provide current, complete and accurate information for all purchases made via our Website. You agree to promptly update any information necessary to complete your transaction.
4.3 Return Policy
Returns are subject to our Return Policy which is available at: https://www.californiadesignden.com/pages/shipping-and-returns. In our sole and absolute discretion, at any time and for any reason, we may provide a refund, discount, or other consideration to some or all of our users (a “Credit”) if we believe it is warranted. Providing a Credit in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us to provide any Credits in the future, under any circumstance. We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
4.2 Payment Card Services
We use the services of Shopify Inc. (“Shopify”), which is a third party service that facilitates payments made through the Website. These payment processing services are provided by Shopify and are subject to the Shopify Terms of Service agreement. For more information about the Shopify Terms of Service agreement, please visit: https://www.shopify.com/legal/terms
By agreeing to these Terms and using the Shopify payment services available through CALIFORNIADESIGNDEN’s Website, you agree to be bound by the Shopify Terms of Service agreement and any modifications which may be made by Shopify. You further agree that you will provide CALIFORNIADESIGNDEN accurate and complete information about you and you authorize CALIFORNIADESIGNDEN to share it and the transaction information related to your use of the payment processing services provided by Shopify. We assume no liability or responsibility for any payments you may make through this service.
5.1 CALIFORNIADESIGNDEN will comply with all applicable privacy and data security laws and regulations governing its processing and storage of Customer Content. CALIFORNIADESIGNDEN shall maintain and conform to a security program in accordance with industry standards that is designed to secure the Customer Content and protect against unauthorized disclosure or access of Customer Content. Such security programs shall include the implementation of appropriate administrative, technical and physical safeguards.6. CALIFORNIADESIGNDEN’s Proprietary Rights
6.1 You hereby acknowledge and agree that CALIFORNIADESIGNDEN (or its licensors) own all legal right, title and interest in and to the Site and Service, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Service (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and CALIFORNIADESIGNDEN, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Site and its content and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by CALIFORNIADESIGNDEN or licensors.
6.2 CALIFORNIADESIGNDEN shall fully own and retain all rights to anonymous usage data derived from your use of the Service (“Usage Data”) as aggregated with usage data from CALIFORNIADESIGNDEN’s other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of CALIFORNIADESIGNDEN’s services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify you.
6.3 Nothing in these Terms gives you any right to use any of CALIFORNIADESIGNDEN’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by CALIFORNIADESIGNDEN under these Terms are reserved.
6.4 Subject to your compliance with these Terms, including, without limitation, your payment of all applicable fees, CALIFORNIADESIGNDEN hereby grants you a limited, personal, worldwide, royalty-free, non-transferable, sublicensable and non-exclusive license to use the Service for your internal business use, to store and manage your Content in such manner as permitted and/or specified by CALIFORNIADESIGNDEN from time-to-time in any applicable documentation or Service descriptions made available by CALIFORNIADESIGNDEN. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by CALIFORNIADESIGNDEN, in the manner permitted by these Terms.
6.5 You may be allowed to sub-license the Services to third-parties with written permission from CALIFORNIADESIGNDEN identifying the sub-licensee third-parties.
6.6 During, and after the termination of, your use of the Service, you will not assert, nor will you authorize or assist any third party to assert, against CALIFORNIADESIGNDEN or any of CALIFORNIADESIGNDEN Parties (as defined below), any patent infringement claim with respect to the Service.7. Service Use Restrictions
7.1 You hereby represent and warrant that you will not, and will not permit any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Service or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Service, or any other systems or networks connected to the Site or Service, or to any CALIFORNIADESIGNDEN server, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Service; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Service or any transaction being conducted on the Site or through the Service, or with any other person’s use of the Site or Service; (d) breach any security measures implemented on the Site or in the Service; (e) track or seek to trace any information on any other person who visits the Site or uses the Service; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to CALIFORNIADESIGNDEN in connection with the Service; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons; (i) use the Service or Site for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; (j) upload or otherwise process any malicious content to, or through, the Service; (k) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the any CALIFORNIADESIGNDEN proprietary software used to provide, maintain, or otherwise applicable to, the Service, or made available to you in connection with the Service; or (l) provide CALIFORNIADESIGNDEN access to or upload or send through the Services any of the following sensitive personal information: social security numbers; passport or visa numbers; driver’s license numbers; taxpayer or employee ID; financial account or payment card information; passwords; medical or health records or information reflecting an individual’s medical treatment or the payment or provisioning of such treatment. You hereby agree that you will notify CALIFORNIADESIGNDEN if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.
7.2 You hereby agree that you will notify CALIFORNIADESIGNDEN if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.8. Your Content & License from You
8.1 You hereby agree that you are solely responsible and liable for any and all information, data files, written text, audio files, photographs, videos, images, and other content (collectively” Content”) that you store, transmit, display, or otherwise use in connection with the Service, and for the consequences of your actions in connection with such Content and your use of the Service. You agree that CALIFORNIADESIGNDEN has no responsibility to you or to any third party in connection with such Content. You are solely responsible for any losses or damage suffered by CALIFORNIADESIGNDEN in connection with your Content. You hereby represent and warrant that you will not store or otherwise use any Content in connection with the Service that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; (d) violates any third party’s copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; or (f) contains a virus, malicious code or any other harmful component.
8.2 CALIFORNIADESIGNDEN reserves the right, at any time in its sole discretion and without notice to you, to pre-screen, review, monitor, flag, filter, modify, refuse or remove any or all Content from the Service, but CALIFORNIADESIGNDEN has no obligation to do so. You agree to immediately take down, delete or modify any Content that is stored by you through the Service that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from CALIFORNIADESIGNDEN. In the event that you elect not to comply with a request from CALIFORNIADESIGNDEN to take down, delete or modify certain Content, CALIFORNIADESIGNDEN reserves the right to directly take down, delete or modify such Content. CALIFORNIADESIGNDEN assumes no liability or responsibility arising from your activities in connection with the Service, including, without limitation, Content that you store or otherwise use in connection with Service.
8.3 CALIFORNIADESIGNDEN will not disclose any of your Content, except: (a) if you expressly authorize us to do so in connection with your use of the Service; (b) as necessary to provide the Service to you; or (c) to comply with the request of any governmental or regulatory body, subpoenas or court orders, or as otherwise required by applicable law, rule or regulation. If we receive a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of any of your Content, we will use good faith efforts to provide you with reasonable notice to allow you to seek a protective order or other appropriate remedy (except to the extent CALIFORNIADESIGNDEN’s compliance with the foregoing would cause it to violate a court order or other legal requirement).
8.4 CALIFORNIADESIGNDEN may use usage patterns, trends and other statistical data derived from your Content and use of the Service for purposes of providing, operating, maintaining, or improving the Service.9. Feedback
9.1 If you send or transmit any communications or materials to CALIFORNIADESIGNDEN by mail, electronic mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to our Site or Service, including without limitation, new features or functionality relating thereto, any comments, questions, suggestions, or the like, all such Feedback are, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by CALIFORNIADESIGNDEN or its agents, violates any of your rights including moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way CALIFORNIADESIGNDEN uses such Feedback.
9.2 You hereby assign all right, title, and interest in, and CALIFORNIADESIGNDEN is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that CALIFORNIADESIGNDEN is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.10. Exclusion of Warranties
10.1 YOUR USE OF THE SITE AND SERVICE IS ENTIRELY AT YOUR OWN DISCRETION AND RISK. THE SITE AND SERVICE ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. CALIFORNIADESIGNDEN, ON BEHALF OF ITSELF, AND ON BEHALF OF ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND CALIFORNIADESIGNDEN’S AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS, (COLLECTIVELY, THE ”GOOD PARTIES”): (A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICE, OR DATA PROVIDED THROUGH THE SERVICE, WILL MEET YOUR REQUIREMENTS, OR THAT ITS OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE.
10.2 THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND CALIFORNIADESIGNDEN. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CALIFORNIADESIGNDEN OR ANY PERSON ON BEHALF OF CALIFORNIADESIGNDEN SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
10.3 NOTHING IN THESE TERMS, THIS SECTION 11, OR SECTION 13 BELOW, SHALL EXCLUDE OR LIMIT CALIFORNIADESIGNDEN’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
10.4 SOME OF OUR PRODUCTS HAVE A LIMITED WARRANTY. PLEASE CLICK HERE FOR DETAILS TO SEE WHICH PRODUCTS HAVE THIS AND ITS TERMS AND CONDITIONS.11. Limitation of Liability
11.1 IN NO EVENT WILL CALIFORNIADESIGNDEN OR CALIFORNIADESIGNDEN PARTIES BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF CALIFORNIADESIGNDEN OR CALIFORNIADESIGNDEN PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 CALIFORNIADESIGNDEN AND CALIFORNIADESIGNDEN PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICE. IF, NOTWITHSTANDING THE FOREGOING, CALIFORNIADESIGNDEN OR ONE OF CALIFORNIADESIGNDEN PARTIES IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, CALIFORNIADESIGNDEN OR THE RELEVANT CALIFORNIADESIGNDEN PARTY’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO CALIFORNIADESIGNDEN DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO CALIFORNIADESIGNDEN’S LIABILITY.12. Indemnification
12.1. You hereby agree to indemnify, defend and hold harmless CALIFORNIADESIGNDEN and CALIFORNIADESIGNDEN Parties (each an ”Indemnified Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your or your sub-licensee’s use of the Service; (b) any breach or alleged breach by you of these Terms; (c) any Feedback or Content provided by you; (d) any breach or alleged breach by you of a third party’s rights, including, without limitation, any intellectual property, privacy or publicity rights; (e) any damage caused by or alleged to have been caused by you to the Site or Service; or (f) any actual or alleged violation or non-compliance by you with any applicable law, rule or regulation, including, without limitation, the applicable spam laws.
12.2. Counsel you select for defense or settlement of a claim must be consented to by CALIFORNIADESIGNDEN and/or the Indemnified Party(s) prior to counsel being engaged to represent you and CALIFORNIADESIGNDEN and/or the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. CALIFORNIADESIGNDEN and/or the Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of CALIFORNIADESIGNDEN or any Indemnified Party(s) without the prior written consent of CALIFORNIADESIGNDEN and/or the Indemnified Party(s).13. Changes to Service
13.1. CALIFORNIADESIGNDEN is constantly striving to provide the best possible experience for its Service users. You acknowledge and agree that the form and nature of the Service which CALIFORNIADESIGNDEN currently provides may change from time-to-time without prior notice to you, Changes to the form and nature of the Service will be effective with respect to all versions of the Service. Examples of changes to the form and nature of the Service include, without limitation, changes to fees and payment policies, security patches, additional functionality, reduced functionality, and other enhancements.14. Termination of Service
14.1 CALIFORNIADESIGNDEN reserves the right in its sole discretion to cease or suspend providing all or any part of the Service immediately without any notice to you, if: (a) you breach, or threaten or intend to breach, these Terms; (b) you test CALIFORNIADESIGNDEN for vulnerabilities or load-testing or any other cause which is not related to its definition without agreement with us for these types of usages; (c) CALIFORNIADESIGNDEN is required to do so under any applicable law, rule or regulation, including, without limitation, the applicable spam laws; (d) the Service relies on data, services or another business relationship between CALIFORNIADESIGNDEN and a third party service provider, and such relationship terminates or changes in such a way that affects CALIFORNIADESIGNDEN’s ability to continue providing the Service; (e) continuing to provide the Service could create a substantial economic burden on CALIFORNIADESIGNDEN as determined by CALIFORNIADESIGNDEN in its sole discretion; or (f) continuing to provide the Service could create a security risk or material technical burden as determined by CALIFORNIADESIGNDEN in its sole discretion.
14.2 If your use of the Service is terminated or suspended pursuant to Sections 14.1 above, except to the extent prohibited by any applicable law, rule or regulation, you will immediately lose access to, and the ability to export, your Content. Without limiting the foregoing, the rights set forth in this Section 14.2 are subject to your payment of any outstanding fees due upon and after termination of your use of the Service.
14.3 Any of your obligations under these Terms which by their nature are intended to survive the termination of your use of the Service, shall continue to apply to you after you cease to use the Service.
14.4 CALIFORNIADESIGNDEN may notify the relevant law enforcement authorities or other third parties, of any illegal or other prohibited conduct by you, including, without limitation, your violation of these Terms or unauthorized use of the Site or Service.15. Governing Law and Venue
15.1. These Terms will be construed and enforced in all respects in accordance with the laws of California (USA) without reference to its choice of law rules. Except as set forth below in Section 15.2, the courts seated in California (USA) shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that CALIFORNIADESIGNDEN may seek to enforce any judgment in its favor in any court of competent jurisdiction.
15.2. Notwithstanding the foregoing, CALIFORNIADESIGNDEN may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to CALIFORNIADESIGNDEN for which there is no adequate remedy at law.
15.3. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Site or Service. Furthermore, these Terms (including without limitation, the Site and Service) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
15.4. Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.16. Third Party Websites
16.1. The Site and Service may provide links to other websites and hosting servers that are not owned or operated by CALIFORNIADESIGNDEN (“Third Party Websites”). CALIFORNIADESIGNDEN provides these links to you as a convenience only, and CALIFORNIADESIGNDEN does not verify, make any representations concerning, or take responsibility for, such Third Party Websites, or the products or services offered through such third party websites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Websites. You should use your own independent judgment before accessing and using such Third Party Websites, or products or services offered through such third party websites.
16.3. Any reference on the Site, or through the Service, to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply CALIFORNIADESIGNDEN’s endorsement or recommendation thereof, and your use of any Third Party Websites and third party product, process, publication, or service is entirely at your own risk.17. Miscellaneous Legal Terms
17.2. The failure of CALIFORNIADESIGNDEN to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
17.3. If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.
17.4. Any notice or other communications by CALIFORNIADESIGNDEN relating to the Service may be made by letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.
17.5. These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Indemnified Party shall be a third-party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.
17.6. CALIFORNIADESIGNDEN may assign or transfer its rights, or delegate any performance, under these Terms to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your performance, under these Terms to any third party without in each and every case, CALIFORNIADESIGNDEN’s express prior written consent.
17.7. CALIFORNIADESIGNDEN will not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, and Internet disturbances.
17.8. CALIFORNIADESIGNDEN may take any legal action against you to enforce these Terms or to prevent the breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, CALIFORNIADESIGNDEN may without limitation, immediately terminate or suspend your use of the Service and access to your Content, if CALIFORNIADESIGNDEN believes in its sole discretion that you are violating these Terms, or that you intend to do so.
17.10. You may not access the Service if you are a direct competitor of CALIFORNIADESIGNDEN’s, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.