Conditions d'utilisation
Necklow Co
Last Updated: 5/19/2022
Please read these Terms of Service (the "Terms") and our
Privacy Policy ("Privacy Policy") carefully because they govern your use of the services (including your
purchase of products) we make available on
Necklow Co (the "Site")
operated and owned by Miami Labs, Inc. (dba OpenStore)
("Company", "us", "we", or
"our"). To make these Terms easier to read, the Site and our
services are collectively called the "Services".
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE
TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY
DISPUTE BETWEEN YOU AND COMPANY THROUGH BINDING, INDIVIDUAL ARBITRATION
RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 14 "DISPUTE
RESOLUTION" BELOW FOR DETAILS REGARDING ARBITRATION.
1. Agreement to Terms. Your access to and use of
the Services is conditioned on your acceptance of and compliance with these
Terms. These Terms apply to all visitors, users and others who access or use
the Services. By accessing and using our Services, you agree to be bound by
these Terms. If you don't agree to be bound by these Terms, do not access or
use the Services.
2. Privacy Policy. Please review our Privacy
Policy, which also governs your use of the Services, for information on how we
collect, use and share personal information.
3. Changes to these Terms. We may update the Terms
from time to time at our sole discretion. If we do, we'll let you know know by
posting the updated Terms on the Site and/or may also send other
communications. It's important that your review the Terms whenever we update
them, you use the Services or make a purchase on the Site. If you continue to
use the Services after we have posted updated Terms it means that you accept
and agree to the changes. If you don't agree to be bound by the changes, you
may not use the Services anymore.
4. General.
(a) Eligibility; Your Account.
You may use the Services only if you are 18 years or older and capable of
forming a binding contract with Company, and not otherwise barred from using
the Services under applicable law. If you are under 18 or not legally
considered an adult in your jurisdiction, you must ask a parent (or legal
guardian) to read this Agreement and accept it on your behalf. Parents and
guardians are responsible for their children's activity in connection with
their use of the Services, whether or not the parent or guardian has
authorized such uses. For access to certain features of the Services, you may
need to register and create an account. It's important that you provide us
with accurate, complete and current account information and keep this
information up to date. If you don't, we might have to suspend or terminate
your account. To protect your account, keep the account details and any
passwords confidential, and notify us right away of any unauthorized use.
You're responsible for all activities that occur under your account.
(b) License to Use the Services.
Subject to your compliance with these Terms, we grant you a limited,
non-exclusive, non-sublicensable, non-transferable, and revocable right to
access and use the Services for your personal, non-commercial use. We reserve
the right to monitor your usage of the Services for the purpose of determining
that your usage complies with these Terms.
(c) Prohibited Conduct.
You may not use the Services other than as expressly permitted by Section 4(b)
above. Without limitation, you will not, directly or indirectly: (i) copy,
reproduce, modify, distribute, display, create derivative works of or transmit
any content on the Services; (ii) use the Services commercially or for the
benefit of any third party or in any manner not permitted by these Terms;
(iii) reverse engineer, decompile, tamper with or disassemble the technology
used to provide the Services (except as and only to the extent any forgoing
restriction is prohibited by a non-waivable provision of applicable law); (iv)
interfere with or damage the Services, or any underlying technology; (v)
impersonate or misrepresent your identity or affiliation; (vi) attempt to
obtain unauthorized access to the Services or download content from the
Services using any engine, software, tool, agent, device or mechanism
(including spiders, robots, crawlers, data mining tools or the like) other
than any software provided by Company or other generally available third-party
web browsers; (vii) collect information about other users of the Services;
(viii) violate, misappropriate or infringe a third party's intellectual
property or other right, or any social media platform terms; (ix) violate any
law, rule, or regulation; or (x) interfere with any third party's ability to
use or enjoy, or our ability to provide, the Services.
5. Terms of Sale.
(a) Product Descriptions.
We try to make the Site thorough, accurate, and helpful to our customers.
Nonetheless, there may be times when certain information contained on the Site
may be incorrect, incomplete, inaccurate, or appear inaccurate because of the
browser, hardware, or other technology that you use. We apologize in advance
for any such errors that may result in an incorrect price, inaccurate
description, item unavailability, or otherwise affect your order, We reserve
the right to correct errors, inaccuracies, or omissions whether by changing
information on the Site or by informing you of the error and giving you an
opportunity to cancel your order.
(b) Ordering.
By placing an order on the Site you are offering to purchase the relevant
product(s) on and subject to these Terms. No such order will be binding on us
unless and until we accept your order and send you a confirmation by email
("Order Confirmation"), which will confirm the products
purchased and price, and will specify a shipment date ("Order Confirmation Shipment Date").
(c) Shipping and Delivery.
(i) We will ship the products to the address as indicated by you during the
checkout process. Unless otherwise agreed in writing, we will pack the
products in accordance with Company's standard practices. Unless you provide
us with specific instructions, we will select the carrier. Title to the
products and risk of loss will pass to you upon our delivery of the products
to the carrier.
(ii) You acknowledge that all scheduled shipment dates, including the Order
Confirmation Shipment Date, are estimates only. We will make commercially
reasonable efforts to meet the scheduled shipment dates, but in no event will
be liable for any loss, damage, or penalty resulting from any delay in
shipment or delivery, nor will the carrier be deemed an agent of Company. We
will have the right to ship the products in separate packages to you,
depending on the availability of the products. If you receive a damaged or
incomplete shipment of products, please contact us at hello@open.store. We
will have the right to delay or suspend shipment of the products if you fail
to make any payment as provided in these Terms.
(d) Returns.
All sales are subject to our shipping and return policies, which will be made
available to you or otherwise delivered to you with your purchased goods. We
monitor return activity for abuse and reserve the right to limit returns or
exchanges in all instances. All refunds are at our sole discretion.
(e) Pricing and Payment Terms.
We reserve the right to change the prices and available products at any time.
Quantities of some products may be limited and stock cannot always be
guaranteed. The prices for the products will be as specified on the Site on
the date you place your order and in an Order Confirmation. Prices are stated
in U.S. dollars and are exclusive of all applicable sales, use, excise,
withholding, value-added and other taxes, duties and charges (collectively,
"Taxes") and shipping costs. You will be responsible for all
such applicable Taxes and costs. All payments will be made in U.S. dollars,
free of any currency controls or other restrictions. When you place your order
(each, a "Transaction"), you expressly authorize us (or our
third-party payment processor) to charge you for such Transaction. Your
payment will be processed once the order has been accepted. We may ask you to
supply additional information relevant to your Transaction, including your
credit card number, the expiration date of your credit card and your email and
postal addresses for billing and notification (such information, "Payment Information"). You represent and warrant that you have the legal right to use all
payment method(s) represented by any such Payment Information. When you
initiate a Transaction, you authorize us to provide your Payment Information
to third parties so we can complete your Transaction and to charge your
payment method (plus any applicable taxes and other charges). You may need to
provide additional information to verify your identity before completing your
Transaction (such information is included within the definition of Payment
Information). By initiating a Transaction, you agree to the pricing, payment
and billing policies applicable to such fees and charges, as posted or
otherwise communicated to you. All payments for Transactions are
non-refundable and non-transferable except as expressly provided in these
Terms and in accordance with the return policy. We reserve the right to cancel
an order placed by you at any time and for any lawful reason prior to delivery
of the products, provided that in the even of a cancellation, we will refund
any fees already paid by you for such order.
6. Reviews, Comments, Communications and Other Content.
(a) User Content. You may post reviews, comments, communications with others, graphics,
images, audio and video on the Site, provided, that, you do not post any
content that: (i) infringes, misappropriates or violates a third party’s
patent, copyright, trademark, trade secret, moral rights or other
intellectual property rights, or rights of publicity or privacy; (ii)
violates, or encourages conduct that would violate, any applicable law or
regulation or would give rise to civil liability; (iii) is fraudulent,
false, misleading or deceptive; (iv) is defamatory, obscene, pornographic,
vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred,
harassment or harm against any individual or group; (vi) is violent or
threatening or promotes violence or actions that are threatening to any
person or entity; or (vii) promotes illegal or harmful activities or
substances. Anything that you share, post, or otherwise make available to us
or share publicly through the Services is referred to as “User Content”. We do not claim any ownership rights in any User Content and nothing in
these Terms will be deemed to restrict any rights that you may have to your
User Content.
(b) Permissions to Your User Content. By making any User Content available through
the Services you hereby grant to Company a non-exclusive, transferable,
worldwide, royalty-free license, with the right to sublicense, to use, copy,
modify, create derivative works based upon, distribute, publicly display and
publicly perform your User Content in connection with operating and
providing the Services, to the extent User Content is personal information,
to process such information as contemplated by our Privacy Policy.
(c) Your Responsibility for User Content. You are solely responsible for all your User
Content. You represent and warrant that you have (and will have) all rights
that are necessary to grant us the license rights in your User Content under
these Terms. Further, you represent and warrant that, to your knowledge,
neither your User Content, nor your use and provision of your User Content
to be made available through the Services, nor any use of your User Content
by Company on or through the Services will infringe, misappropriate or
violate a third party’s intellectual property rights, or rights of publicity
or privacy, or result in the violation of any applicable law or
regulation.
(d) Removal of User Content. Company is not obligated to monitor access to
or use of the Services or to review or edit any content. However, we have
the right to do so for the purpose of operating the Services, to ensure
compliance with these Terms and to comply with applicable law or other legal
requirements. We reserve the right, but are not obligated, to remove or
disable access to any content, including User Content, at any time and
without notice, including, but not limited to, if we, at our sole
discretion, consider it objectionable or in violation of these Terms.
Intellectual Property.
7. Intellectual Property
(a) Intellectual Property Rights. All content on the Site, or otherwise made available via the Services,
including the text, notes, graphics, photos, sounds, music, videos,
interactivities and the like, the trademarks, service marks and logos
contained therein, the design of the Site and/or Services, and all software
and other technology (collectively, “Company IP”), are
owned by or licensed to us and/or our affiliates. Content is provided to you
“as is” for your information and personal use only and may not be used,
reproduced, altered, distributed, transmitted, broadcast, displayed, sold,
licensed, removed, obscured, or otherwise exploited for any other purposes
whatsoever.
(b)
Reservation of Rights. We reserve all right, title and interest not
expressly granted in and to the Site, Services, and Company IP, including
all associated proprietary intellectual property rights. Using the Site
and/or Services does not give you any ownership of or right in or to any
Company IP. You acknowledge that the Site, Services and Company IP are
protected by copyright, trademark, and other laws of the United
States.
8. Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources.
9. Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at hello@open.store. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 4(c), 5(e) (only for payments due and owing to Company prior to the termination), 6(b), 6(c), 7, 9, 10, 11, 12, 13, 14 and 15.
10. Warranty Disclaimers. THE SERVICES AND PRODUCTS MADE AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR THAT THE PRODUCTS WILL BE IN STOCK, SAFE, DEFECT-FREE, CONFORM WITH WRITTEN OR ORAL SPECIFICATIONS, GUARANTEES, REPRESENTATIONS, WARRANTIES OR PROMISES, OR THAT PRODUCTS WILL NOT BE LOST OR DAMAGED IN SHIPMENT. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT, MATERIALS, PRODUCTS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OR CONSUMPTION OF THE PRODUCTS IS DONE AT YOUR SOLE RISK, YOU ASSUME ALL LIABILITY IN CONNECTION WITH SUCH USE OR CONSUMPTION OF THE PRODUCTS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL HAVE NO LIABILITY TO YOU BASED ON YOUR USE OR CONSUMPTION OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE THAT MAY RESULT FROM YOUR USE OR CONSUMPTION OF THE PRODUCTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. Indemnity. You will indemnify and hold Company and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
12. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW,
NEITHER COMPANY NOR ITS SERVICE PROVIDERS INVOLVED IN THE PROVISION OF THE
SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST
SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE
INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF PROCURING
SUBSTITUTE SERVICES OR PRODUCTS OF ANY KIND ARISING OUT OF OR IN CONNECTION
WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR THE
PURCHASE, SALE, USE OR PERFORMANCE OF THE PRODUCTS, WHETHER BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY
OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY OR ITS SERVICE PROVIDERS HAVE
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY
SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE
LAW, IN NO EVENT WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR IN
CONNECTION WITH THESE TERMS, THE PRODUCTS OR FROM THE USE OF OR INABILITY TO
USE THE SERVICES OR PRODUCTS EXCEED THE ACTUAL AMOUNT PAID TO COMPANY BY YOU
FOR THE PRODUCT(S) THAT GIVES RISE TO THE CLAIM OR, IF THE CLAIM DOES NOT
RELATE TO A PRODUCT, FIFTY U.S. DOLLARS ($50).
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND
YOU.
13. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Company are not required to arbitrate will be the state and federal courts located in the Miami-Dade County, FL and you and Company each waive any objection to jurisdiction and venue in such courts.
14. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or
controversy arising out of or relating to these Terms or the breach,
termination, enforcement, interpretation or validity thereof or the use of
the Services (collectively, “Disputes”) will be resolved
solely by binding, individual arbitration and not in a class, representative
or consolidated action or proceeding. You and Company agree that the U.S.
Federal Arbitration Act governs the interpretation and enforcement of these
Terms, and that you and Company are each waiving the right to a trial by
jury or to participate in a class action. This arbitration provision shall
survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 14(a) above:
(i) we both may seek to resolve a Dispute in small claims court if it
qualifies; and (ii) we each retain the right to seek injunctive or other
equitable relief from a court to prevent (or enjoin) the infringement or
misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the
American Arbitration Association (“AAA”) under its Consumer
Arbitration Rules (the “AAA Rules”) then in effect, except
as modified by these Terms. The AAA Rules are available at www.adr.org or by
calling 1-800-778-7879. A party who wishes to start arbitration must submit
a written Demand for Arbitration to AAA and give notice to the other party
as specified in the AAA Rules. The AAA provides a form Demand for
Arbitration at www.adr.org. Any arbitration hearings will take place in the
county (or parish) where you live, unless we both agree to a different
location. The parties agree that the arbitrator shall have exclusive
authority to decide all issues relating to the interpretation,
applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and
arbitrator fees will be governed by the AAA Rules, and we won’t seek to
recover the administration and arbitrator fees we are responsible for
paying, unless the arbitrator finds your Dispute frivolous. If we prevail in
arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to
recover them from you. If you prevail in arbitration you will be entitled to
an award of attorneys’ fees and expenses to the extent provided under
applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 14(b) above,
the arbitrator shall determine all issues of liability on the merits of any
claim asserted by either party and may award declaratory or injunctive
relief only in favor of the individual party seeking relief and only to the
extent necessary to provide relief warranted by that party’s individual
claim. To the extent that you or we prevail on a claim and seek public
injunctive relief (that is, injunctive relief that has the primary purpose
and effect of prohibiting unlawful acts that threaten future injury to the
public), the entitlement to and extent of such relief must be litigated in a
civil court of competent jurisdiction and not in arbitration. The parties
agree that litigation of any issues of public injunctive relief shall be
stayed pending the outcome of the merits of any individual claims in
arbitration.
(f) Class Action Waiver. YOU AND COMPANY AGREE THAT EACH MAY BRING
CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS
A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE
PROCEEDING. Further, if the parties’ Dispute is resolved through
arbitration, the arbitrator may not consolidate another person’s claims with
your claims, and may not otherwise preside over any form of a representative
or class proceeding. If this specific provision is found to be
unenforceable, then the entirety of this Dispute Resolution section shall be
null and void.
(g) Severability. With the exception of any of the provisions
in Section 14(f) of these Terms (“Class Action Waiver”), if
an arbitrator or court of competent jurisdiction decides that any part of
these Terms is invalid or unenforceable, the other parts of these Terms will
still apply.
15. General Terms.
(a) Entire Agreement. These Terms constitute the entire and
exclusive understanding and agreement between Company and you regarding the
Services, and these Terms supersede and replace all prior oral or written
understandings or agreements between Company and you regarding the Services.
If any provision of these Terms is held invalid or unenforceable by an
arbitrator or a court of competent jurisdiction, that provision will be
enforced to the maximum extent permissible and the other provisions of these
Terms will remain in full force and effect. You may not assign or transfer
these Terms, by operation of law or otherwise, without Company’s prior
written consent. Any attempt by you to assign or transfer these Terms,
without such consent, will be null. Company may freely assign or transfer
these Terms without restriction. Subject to the foregoing, these Terms will
bind and inure to the benefit of the parties, their successors and permitted
assigns.
(b) Notices. Any notices or other
communications provided by Company under these Terms will be given: (i) via
email; or (ii) by posting to the Site. For notices made by email, the date
of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights.
Company’s failure to enforce any right or provision of these Terms will not
be considered a waiver of such right or provision. The waiver of any such
right or provision will be effective only if in writing and signed by a duly
authorized representative of Company. Except as expressly set forth in these
Terms, the exercise by either party of any of its remedies under these Terms
will be without prejudice to its other remedies under these Terms or
otherwise. (d)
Force Majeure. Company will
not be responsible for any failure or delay in the performance of its
obligations under these Terms due to causes beyond its reasonable control,
which may include, without limitation, labor disputes, strikes, lockouts,
shortages of or inability to obtain energy, raw materials or supplies,
denial of service or other malicious attacks, telecommunications failure or
degradation, pandemics, epidemics, public health emergencies, governmental
orders and acts (including government-imposed travel restrictions and
quarantines), material changes in law, war, terrorism, riot, or acts of God.
(e) Export. You will comply
with all applicable federal laws, regulations and rules that prohibit or
restrict the export or re-export of the products outside the United States
(“Export Rules”), and will complete all undertakings
required by Export Rules, including obtaining any necessary export license
or other governmental approval.
16. Contact Information. If you have any questions about these Terms or the Services, please contact us at hello@open.store.