- Effective as of June [___], 2021[DS1]
Welcome to The Elizabeth Sutton Collection! The Elizabeth Sutton Collection, a Delaware limited liability company (together with its subsidiaries, parent and affiliates, including without limitation, The Elizabeth Sutton Collection (New York), Elizabeth Sutton Designs LLC, Elizabeth Sutton Fine Arts LLC, Elizabeth Sutton Licensing LLC, Elizabeth Sutton Media/Success By Design Podcast LLC, collectively, “ESC,” “we,” “our,” “us”), is are a NYC-based, highly curated, fine art and design and media firm. Our goal is to foster positivity and good vibes through the colorful artworks and products provided by our founder, Elizabeth Sutton.
THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
We reserve the right, in our sole discretion, to modify or update these Terms at any time for any reason, with or without prior notice to you, and any such changes to these Terms will supersede and replace any previous Terms effective immediately upon posting to this page. It is your responsibility to periodically review these Terms as posted here for any changes. Your continued use of the Site after the posting of changes to these Terms will constitute your acceptance of such changes. For the avoidance of doubt, you should discontinue using the Site if you do not agree with any changes to these Terms.
WHEN YOU ACCESS OR USE THE SITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU ARE A REGISTERED USER. IF YOU DO NOT AGREE TO THESE TERMS, OR TO ANY CHANGES WE MAY SUBSEQUENTLY MAKE TO THESE TERMS, YOU MUST IMMEDIATELY STOP ACCESSING THE SITE AND DISCONTINUE USING THE SERVICES PROVIDED BY ESC. THESE TERMS APPLIES TO ALL VISITORS, USERS, VENDORS, CUSTOMERS, MEMBERS, MERCHANTS AND OTHERS WHO ACCESS THIS SITE.
Your access to and use of the Site is subject to your continued compliance with these Terms and all applicable laws. Your right to access and use the Site will terminate immediately, without any further action by ESC, if you breach these Terms.
License to Use the Site.
We are pleased to grant you a non-exclusive, revocable, limited license to use the Site solely for your personal and non-commercial use. You may only use the Site in the manner in which the Content (as defined below) you access is intended and in compliance with these Terms and with any and all applicable federal, state, local and international laws, rules and regulations. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer or sell any Content, software, products or services contained with the Site without the express written consent of ESC. You may not use the Site or any of its Content to further any commercial purpose, including any advertising or advertising revenue generation active on your own website or in any other form or medium. All rights not expressly granted to you in these Terms are reserved and retained by ESC and/or its Content providers. The licenses granted by ESC terminate if you do not comply with these Terms and/or any other Site terms and conditions.
By using the Site, you represent that you are not a person barred from using the Site under the laws, rules and regulations of the United States, your place of residence or any other applicable jurisdiction. No other rights, assignment, licenses or legal relationship of any nature, including, but not limited to, agency, partnership, joint-venture, employer-employee, franchisor-franchisee or otherwise, either express or implied, are created through your use of the Site unless expressly reserved in these Terms.
Ability to Accept these Terms
Registration / Accounts
By creating an account, you agree: (a) that you are able to and have the appropriate authority and authorization to create a binding agreement with ESC; (b) provide true, accurate, current and complete information about yourself when we request it; (c) maintain and promptly update this information to keep it true, accurate, current and complete to the extent the Site permit such updates; and (d) use limited-access portions of the Site only using access credentials that we have issued to you. If you have previously had your access to or use of the Site terminated by us, you may not access or use the Site under any circumstances. You should never share your Account information with third parties or allow third parties to use your Account. Please keep your password confidential and be sure to exit from your Account at the end of each session. You are responsible for all of the activity on your Account, including the use of your Account by other people who you may or may not authorize to use your Account. If you allow others to access your Account in violation of these Terms, you agree to be responsible for ensuring that they comply with these Terms. You must notify us immediately of any breach of security or unauthorized use of your Account by sending an e-mail to firstname.lastname@example.org with “Unauthorized Use” in the subject line. Even if you notify us, you will be responsible for any activities that occur using your access credentials, including any charges resulting from the use of your account. ESC will not be liable for any losses caused by any unauthorized use of your account.
By providing ESC your email address, you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Site and special offers. If you do not want to receive such email messages, you may opt-out or change your preferences on the personal settings page associated with your account. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
When you sign up for or use our products and services, you may give us permission to access your information in other services. For example, you may link your Facebook account, which allows us to obtain information from those accounts (like your full name and email). The information we get from those services often depends on your settings or their privacy policies, so be sure to check what those are.
ESC reserves the right, in its sole discretion, to terminate your access to the Site or any portion thereof at any time, without notice. You may terminate your Account at any time by sending an e-mail to email@example.com with “Cancel Account” in the subject line or you may unsubscribe to a Subscription by clicking the “Unsubscribe” link at the bottom of the email or sending an email to firstname.lastname@example.org with “Unsubscribe” in the subject line. Please allow 48 hours for termination to take effect. Following termination, you will not receive any further communications from us unless and until you re-register by creating a new Account or request a new Subscription. Our rights under these Terms will expressly survive termination of these Terms, the cessation of your use of or access to the Site, termination of your Account and/or cancellation of your Subscription.
Intellectual Property Rights
The Site and its content, features and functionality, including, without limitation, information, software, text, graphics, logos, button icons, images, audio clips, video clips, data compilations and the design, selection and arrangement thereof, are the exclusive property of ESC, our licensors or other content suppliers, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, and may not be used or exploited in any way without our prior written consent.
No right, title or interest in or to the Site or any Content is transferred to you and all rights not expressly granted are reserved. Any use of the Site that is not expressly permitted by these Terms may be a breach of these Terms and may violate copyright, trademark and other laws.
In addition to the intellectual property rights mentioned above, for purposes of these Terms, “Content” is defined as all information such as the “look and feel” of the Site, data files, graphics, text, photographs, drawings, logos, images, sounds, music and video and audio files on the Site. ESC tries to ensure that the Content is accurate and complete. Your use of the Site is at your risk. ESC does not warrant that the functional aspects of the Site or the Content will be error free or that the Site, the Content or the server that makes it available are free of viruses or other harmful components. ESC and its suppliers make no warranties about the Content or about results to be obtained from using the Site. You bear the entire risk of the completeness, accuracy or usefulness of any Content found on the Site. ESC reserves the right to withdraw, temporarily or permanently, any Content from the Site at any time and for any reason and such removal may be immediate and without notice. As an express condition to your use of and access to the Site, you acknowledge, agree and confirm that ESC is not liable to you or any third party for any such withdrawal.
All of the Content on the Site is selected by Elizabeth Sutton and our editorial staff and is editorial content. From time to time some of the Content may be sponsored or third-party content (“Sponsored Content”) and any such Sponsored Content will be marked as such. When you subscribe to receive Content, you agree to receive Sponsored Content. If you would prefer not to receive such Sponsored Content you should unsubscribe by clicking the “Unsubscribe” link at the bottom of any email or sending an email to email@example.com with “Unsubscribe” in the subject line. If you unsubscribe you will not receive any Content, whether it is Sponsored Content or ESC Content. To the extent that we post third party Content, it reflects the personal opinions and views of the third-party authors and does not necessarily reflect the opinions and views of ESC and we accept no responsibility for any such third party opinions and views.
You may not under any circumstances:
- Copy or print any of the Content, whether licensed by us or otherwise, unless and to the extent it is for your own personal, non-commercial use and you must retain all trademark, copyright and other proprietary notices contained in and on any such Content;
- Reproduce, download, modify, translate, add to, distribute, transmit, publish, perform, display, disclose, archive, upload, broadcast or sell, sublicense, index or exploit any part of the Site or the content thereon in any medium, either directly or through the use of any device, software, internet site, web-based service or other means, without our prior express written permission;
- Remove, alter, bypass, avoid, interfere with or circumvent any copyright, trademark or other proprietary notices marked on the Content or any digital rights management mechanism, device or other content protection measures either directly or through other means;
- Mirror, frame, screen scrape or deep link to any aspect of the Site or access any Content through technology or means other than those provided or authorized by us;
- Access the Site via any automated system, including, without limitation, by “robots,” “spiders,” “offline readers,” etc., or take any action that imposes, or may impose (as determined in our sole discretion), an unreasonable or disproportionately large load on our infrastructure;
- Knowingly or recklessly upload invalid data or introduce viruses, worms, Trojan horses or other malware or software agents, whether harmful or not, to the Site, or tamper with, impair, damage, attack, exploit or penetrate the ESC system or network, or otherwise attempt to interfere with or compromise the system integrity or security of ESC or any connected networks, or take any action to impact the proper operation of the Site and any person’s or entity’s use or enjoyment thereof;
- Bypass the measures we may use to prevent or restrict access to or use of the Site, including by hacking into secured or non-public areas of the Site, circumventing any geo-blocking mechanisms or otherwise;
- Use the Site to collect any personally identifiable information, including Account names and e-mail addresses, or use the Site for any commercial solicitation purposes, without our prior express written permission; or
- Attempt to reverse engineer any aspect of the Site or attempt to derive the source code (including the tools, methods, processes and infrastructure) that enables or underlies the Site, create any derivative works or materials of any kind using the Content, whether or not you intend to give away the derivative materials free of charge, or otherwise build a business utilizing any aspect of the Site.
If and to the extent that we elect to accept User Material, you may have the opportunity to publish, transmit, submit or otherwise post reviews, ratings, comments, feedback or other materials on the Site (“User Material”) that may be accessible and viewable by the public.
With respect to User Material posted by you, you represent that (i) you created and own the rights to the content or you have the owner’s express permission to post such content, and (ii) the content does not infringe any other person’s or entity’s rights (including, without limitation, copyrights, trademarks or privacy rights) or violate any applicable laws, rules or regulations, these Terms or any of our other posted policies.
User Material must not:
- Contain any material which is false, defamatory, libelous, obscene, harassing, threatening, discriminatory, bigoted, hateful, violent, vulgar, profane, pornographic or otherwise offensive, inappropriate, damaging, unlawful, disruptive or harmful;
- Violate our or any other person’s legal rights (including the rights of publicity and privacy), contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or otherwise promote, advocate or assist any illegal activity or unlawful act;
- Create or threaten harm to any person or loss or damage to any property;
- Include other peoples’ personal information, such as another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual;
- Infringe any patent, trademark, trade secret, copyright, contract or other intellectual property or other proprietary rights of ESC or any other person;
- Seek to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- Misrepresent your identity or affiliation with any person or organization, including ESC;
- Seek to collect other users’ e-mail addresses and/or their usernames or passwords for their Accounts or other services by electronic or other means for any purpose, including to send unsolicited e-mail or other electronic communications;
- Seek to transmit chain letters, bulk or junk e-mail, whether automated or not, or interfere with, disrupt or create an undue burden on ESC or the networks or services connected to the Site or install or attempt to install or promote spyware, malware or other computer code on our computers or equipment or the computers or equipment of third parties; or
- Involve commercial activities such as contests, sweepstakes and/or other sales promotions, barter, advertising or offers of sale or purchase of goods and services; or
- Be otherwise objectionable or non-family friendly as determined by ESC at its sole discretion.
We do not claim ownership to User Material. However, by posting User Material, you irrevocably grant us and our assigns, agents and licensees and other users a worldwide, non-exclusive, irrevocable, royalty-free, fully paid license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to: (i) use, reproduce, transmit, modify, index, adapt, publish, translate, create derivative works from, distribute, display and otherwise exploit such content throughout the world in any media, whether now known or hereafter invented, including for any and all purposes, including commercial or marketing purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or any other person or entity, and (ii) to use your name, persona or likeness alone or in connection with such uses, without any obligation or remuneration to you. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Material and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Material for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Material, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. You agree to pay all royalties, fees and other monies owing to any person or entity by reason of the User Material that you post on the Site.
We may refuse, alter, or remove a User Submission without notice for any reason at ESC’s sole discretion, including our belief that a User Submission may violate these Terms or be otherwise objectionable. If and to the extent that we elect to accept User Material, we have the right, but not the obligation, to monitor, review, screen, post, remove, reject, modify and store all User Material posted on the Site, at any time and for any reason, without notice, including to ensure that all such User Material complies with these Terms. We do not endorse any User Material and the User Material posted does not reflect our opinions, views or advice. You are solely responsible for your User Material and the consequences of posting and publishing it and you agree that we are acting only as a passive conduit for your online distribution and publication of your User Material. We take no responsibility and assume no liability for any User Material that you or any other user or third-party posts or sends on or through the Site, nor do we assume any liability for any action or inaction regarding transmissions, communications or content provided by any user or third party.
We reserve the right, but have no obligation, to monitor or to take any action regarding disputes between you and any other user and shall have no liability for your interactions or any disputes with other users or for any user’s action or inaction. You are solely responsible for your conduct on the Site and your interactions with other users.
Notwithstanding our rules with regard to User Material, you may be exposed to content on the Site that is inaccurate, objectionable, inappropriate for children or otherwise unsuited to your purpose or in violation of our Terms. We take no responsibility and expressly disclaim any liability related in any way to your exposure to User Material on the Site, whether or not it violates our Terms.
If and to the extent that we elect to accept User Material, please choose carefully the information you post on the Site and that you give to other users. You are discouraged from publicly posting your full name, telephone number, street address, e-mail address or other information that identifies you or allows strangers to find you or to steal your identity. You assume all risks associated with dealing with other users with whom you come in contact through the Site, and to the extent that the law permits, you release us from any claims or liability related to any User Material posted on the Site and from any claims related to the conduct of any other users.
Members-Only. Coming Soon!
ESC Referral Program
As ESC grows, to incentivize our biggest fans and supporters to continue spreading the ESC spirit, vision and love, we’ve created the ESC Referral Program to rewards those who help us spread ESC. The terms of the referral program are as follows:
- Sign up HERE  to join the ESC Referral Program in order to access a unique referral code.
- Each person with whom you share this code that converts into a new ESC client will receive 10% off his/her purchase.
- In return for the referral, you will receive 10% of the value of their sale as website credit to ESC.
Modification or Suspension of the Site and Right to Terminate Your Use of the Site
We reserve the right to change, suspend or discontinue any aspect of the Site at any time and from time to time, in our sole discretion and without notice or liability, including by adding or eliminating certain features or discontinuing the Site entirely. Any description of features on the Site shall not be considered to be a representation by ESC that such features will always be included on the Site. From time to time, we may restrict access to some or all of the Site, including for Registered Users. We also reserve the right to terminate or suspend your Account or restrict your use of or access to the Site, without notice or liability, for any reason or no reason at our sole discretion. Accordingly, for any reason, and without notice, all or any part of the Site may become unavailable to you at any time and for any period.
If we suspend or discontinue any aspect of the Site or terminate your Account, we are not responsible for providing you with any information or content. We may also delete your other preferences and interests to the extent stored within or in connection with your Account. You have no recourse with regard to any information that we delete regardless of any value you may ascribe to such information. We expressly disclaim any value you may attribute to any of your information stored on our servers.
Linked Destinations and Advertising
Unless otherwise expressly noted in writing, we do not endorse any Linked Sites. ESC expressly disclaims responsibility and liability for, Linked Sites, including with respect to the content, products and services provided by the Linked Sites. Any interactions you have with Linked Sites are between you and the Linked Sites and you agree that ESC is not liable for any damage or loss you may suffer as a result of any interactions with any such Linked Sites or any claims that you may have against any such Linked Sites.
- All contents of the Site including but not limited to text, design, graphics, interfaces, or code are protected by copyright and all rights therein are reserved. All trademarks, service marks, and trade names are trademarks or registered trademarks and are proprietary to ESC, or other respective owners that have granted ESC license to use such marks.
ESC will respond to proper notifications of claimed copyright infringement with respect to material posted by users, and will take appropriate action including removing and disabling access to the allegedly infringing material. We also will, in appropriate circumstances, terminate the accounts of registered users whom we find to be repeat infringers. We also may, in our discretion, suspend and/or terminate the account of any registered user who infringes another’s intellectual property right, whether or not there is repeat infringement.
If you believe your copyright has been infringed, you should submit notice to:
The Elizabeth Sutton Collection LLC
Attn: Copyright Agent
Any such notice should include the following:
- Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification (including without limitation, registration number) of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Copyright Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
- Your physical or electronic signature.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of Maryland, U.S.A., if you reside outside of the U.S.A.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.
You understand that products offered by ESC may contain materials that could be dangerous if handled improperly, and you acknowledge that ESC is not liable for any personal injury or property damage arising from any misuse of any products offered through the Site. You further acknowledge that products may not be suitable for use by children, and you expressly assume sole liability for providing any individual under the age of 18 with access to any products. You hereby agree not use products for any illegal purpose and you assume all liability for any action you take for any action that is contrary to any law, rule, or regulation of any territory.
Under California Civil Code Section 1789.3, California users of the Site receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
The information, software, products and services included in or available through the Site are continually upgraded and updated. While ESC will use commercially reasonable efforts to verify the accuracy of any information it places on the Site, ESC does not warrant or represent that such information, products and/or services are reliable, accurate, complete, uninterrupted, error free, secure or free of defects, viruses or bugs. ACCORDINGLY, THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND AND YOUR USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. ESC AND/OR ITS SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED, REGARDING THE SITE, INFORMATION, SOFTWARE, PRODUCTS SERVICES OR RELATED GRAPHICS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY PURPOSE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, COMPATIBILITY, SECURITY AND ACCURACY, AND ALL WARRANTIES THAT MAY ARISE FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN STATES AND JURISDICTIONS IN WHICH THE EXCLUSION OF WARRANTY IS PROHIBITED, SUCH EXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED.
ESC DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY INFORMATION, PRODUCT OR SERVICE PROVIDED, ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY LINKED SITE AND ESC WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY LINKED SITE. ANY SUCH LINKS ARE PROVIDED FOR YOUR CONVENIENCE ONLY. IF YOU CHOOSE TO CLICK ON ANY SUCH LINKS, YOU ACKNOWLEDGE AND AGREE THAT YOU, NOT ESC, ARE DISPLAYING ITS CONTENTS AND YOU ACCESS SUCH LINKED SITES AT YOUR OWN RISK. WE EXPRESSLY DISCLAIM ALL LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED BY ANY SOCIAL MEDIA SERVICES IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SOCIAL MEDIA ACCOUNTS. You acknowledge and agree that any reliance on the information and other materials included on the Site shall be at your sole risk and responsibility. ESC reserves the right, in its sole and absolute discretion, to correct any errors or omissions in any part of the Site and to make changes to the services, materials, products, programs and features included therein at any time with or without notice.
Medical, Nutrition and Fitness Information
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ALL MEDICAL, NUTRITION AND FITNESS INFORMATION PROVIDED ON THE SITE, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY ESC OR BY OTHER USERS OR THIRD PARTIES, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (i) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (ii) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (iii) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. PLEASE CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER IF YOU HAVE HEALTH-RELATED QUESTIONS BEFORE USING ANY OF OUR PRODUCTS OR RELYING ON ANY INFORMATION YOU OBTAIN ON THE SITE. INFORMATION AND STATEMENTS REGARDING DIETARY SUPPLEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. SHOULD YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY.
YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON OR VIA THE SITE AND YOU SHOULD NOT USE THE SITE OR ANY CONTENT AVAILABLE THROUGH OR VIA THE SITE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF ANY CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND ESC, ITS AFFILIATES OR ANY THIRD PARTY.
THE SITE MAY PERIODICALLY PROVIDE INFORMATION CONCERNING FITNESS AND ATHLETIC ACTIVITIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SUCH ACTIVITIES CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY OUR ACTION, INACTION OR NEGLIGENCE OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. ESC STRONGLY RECOMMENDS THAT YOU CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER BEFORE BEGINNING ANY NEW FITNESS PROGRAM OR ENGAGING IN ANY NEW ATHLETIC ACTIVITIES.
Indemnity and Release
You agree to defend, indemnify, and hold harmless ESC and its agents, managers, affiliates, licensors, licensees, successors and assigns and each of their respective directors, officers, contractors, employees, agents, service providers and partners (“Indemnified Parties”), from and against any demands, losses, cost or debt, liabilities, claims or expenses (including reasonable attorneys’ fees) made against ESC by any third party due to or arising out of or in connection with (i) your use of and access to the Site, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms; (iii) your violation of any third-party right, including without limitation any right of privacy, right of publicity or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) your User Material or any that is submitted via your account; or (vi) any other party’s access and use of the Site with your unique username, password, or other appropriate security code.
California Residents: you expressly waive CA Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Limitations on Liability
THE PROVIDERS WHOSE THIRD-PARTY PRODUCTS AND SERVICES ARE AVAILABLE ON THE SITE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF ESC. ESC IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH PROVIDERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR OTHER DAMAGE OR EXPENSES RESULTING, DIRECTLY OR INDIRECTLY, FROM SUCH PRODUCTS AND/OR SERVICES.
EXCEPT FOR A BREACH OF THESE TERMS BY YOU (SUCH AS, FOR EXAMPLE, A COMMERCIAL USE OF THE SITE IN VIOLATION OF THESE TERMS), A VIOLATION OF INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION OBLIGATIONS OR WITH RESPECT TO PRODUCTS OR SERVICES THAT WE PROVIDE TO A SPECIFIC CONSUMER FOR A FEE WHICH SHALL BE GOVERNED BY ITS OWN CONTRACTUAL TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOU OR ESC AND/OR ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, GOODWILL OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, THE DELAY OR INABILITY TO USE THE SITE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES AND/OR FUNCTIONALITY OF THE SITE, OR FOR ANY CONTENT, PRODUCTS OR SERVICES OBTAINED OR PURCHASED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ESC AND/OR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN STATES AND JURISDICTIONS IN WHICH LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARE PROHIBITED, SUCH LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. EXCEPT FOR A BREACH OF THESE TERMS BY YOU (SUCH AS, FOR EXAMPLE, A COMMERCIAL USE OF THE SITE IN VIOLATION OF THESE TERMS), VIOLATION OF INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION OBLIGATIONS OR WITH RESPECT TO PRODUCTS OR SERVICES THAT WE PROVIDE TO A SPECIFIC CONSUMER FOR A FEE WHICH SHALL BE GOVERNED BY ITS OWN CONTRACTUAL TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOUR OR OUR TOTAL LIABILITY FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO USE OF THE SITE OR $50 (WHICHEVER IS LESS).
UNDER NO CIRCUMSTANCES WILL ESC AND/OR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE, YOUR DATA OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. WE RESERVE THE RIGHT AT ALL TIMES TO DISCLOSE ANY INFORMATION THAT WE DEEM NECESSARY TO COMPLY WITH ANY APPLICABLE LAW, RULE, REGULATION, LEGAL PROCESS OR GOVERNMENTAL REQUEST. YOU WAIVE AND HOLD HARMLESS ESC AND ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS AND ASSIGNS FROM ANY CLAIMS RESULTING FROM ANY ACTION RELATING TO YOUR ACCOUNT OR TAKEN AS A RESULT OF ANY SUCH DISCLOSURE. ESC MAKES NO REPRESENTATION THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE AT LOCATIONS OUTSIDE OF THE UNITED STATES. ACCESS TO THE SITE FROM TERRITORIES WHERE SUCH SERVICES ARE ILLEGAL IS STRICTLY PROHIBITED. IF YOU ACCESS THE SITE FROM A LOCATION OUTSIDE OF THE UNITED STATES, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL AND OTHER APPLICABLE LAWS.
Law and Jurisdiction
These Terms and any dispute that may arise between you and ESC shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law and the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
DISPUTES ARISING FROM THESE TERMS AND YOUR USE OF THE SITE SHALL BE RESOLVED BY BINDING ARBITRATION AS PROVIDED BELOW. BY AGREEING TO BINDING ARBITRATION, YOU ARE HEREBY WAIVING THE RIGHT TO BRING DISPUTES TO A COURT, INCLUDING THE RIGHT TO TRIAL BY JURY. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. WE ALSO BOTH AGREE THAT YOU OR WE MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS. ANY CAUSE OF ACTION YOU MAY HAVE WITH RESPECT TO YOUR USE OF THE SITE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.
Binding Arbitration and Class Action Waiver
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at [__________] . with “Arbitration Request” in the subject line. You may also contact us by mail at:
The Elizabeth Sutton Collection LLC
Attn: Legal Department
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims which total in the aggregate less than $10,000, unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION. You agree to arbitrate with ESC only in your individual capacity and not as a representative or member of a class or in any consolidated or representative proceeding. As such, your claims may not be joined with any other claims and there shall be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. For certain claims, like violations of these Terms or breaches of intellectual property covenants, we reserve the right to seek injunctive relief in a court of competent jurisdiction. All arbitrations shall be initiated in New York County, New York.
Waiver and Severability
No waiver by ESC of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition and any failure of ESC to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the Terms shall continue in effect.
These Terms and any rights and licenses granted hereunder may not be transferred or assigned by you. We may assign our rights under these Terms without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.
These Terms and the other agreements referred to herein constitute the sole and entire agreement between you and ESC with respect to the Site and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site.
It is our goal to provide you with a first class user experience, so if you have any questions or comments about these Terms, please feel free to contact us by e-mail at firstname.lastname@example.org or write to us at:
The Elizabeth Sutton Collection LLC
Attn: Legal Department
[DS1]Note for posting: should be update to the date these go live.
Note for posting: These should all be hyperlinked to the respective sections below.
Note for posting: hyperlink to the referral signup page.
[DS4]Note for posting: Include virtual office address.
Note for posting: Include “legal@” email address.
Note for posting: Include “legal@” email address.
[DS7]Note for posting: Include virtual office address.
[DS8]Note for posting: Include virtual office address.