Terms and Conditions
The following terms and conditions (“Terms") govern your use of the website cushnie.com and any other website, microsite, mobile device application, social media or other internet property owned or operated by Cushnie, LLC or any of its affiliates or subsidiaries (collectively, “Cushnie" or “we" or “us" or “our") and related services (collectively, the “site(s)"). The terms “you," “your," and “user" refer to anyone who accesses or is a visitor to any of the site(s), including the website and web pages located at cushnie.com. The site(s) are made available by Cushnie. USE OF ANY OF THE SITE(S) OR THE PURCHASE OF PRODUCTS FROM THE SITE(S) CONSTITUTES YOUR AGREEMENT TO BE BOUND BY AND TO ACT IN ACCORDANCE WITH THESE TERMS. your access to and use of the site(s) is undertaken at your own risk. If you do not agree to these Terms or are dissatisfied with the site(s) or any content therein, your sole and exclusive remedy is to stop using the site(s) and its/their information, content and services, and you may not access or otherwise use the site(s).
As between you and Cushnie, Cushnie owns, solely and exclusively, all rights, title, and interest in and to the site(s) and all the content (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, software, etc.), code, data and materials thereon, the look and feel, design and organization of the site(s), and the compilation of the content, code, data, and materials on the site(s), including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein, or has a valid right from a third party to use such material on the site(s). Your use of the site(s) does not grant to you ownership of any content, code, data, or materials that you may access on the site(s), nor does it grant you any license to use or display the same except as permitted on the site(s) itself.
Subject to these Terms, we grant to you a non-exclusive, non-transferable, limited license to access, view, use and display the sites and site content on your computer or other device, provided that you comply fully with these Terms. Unless you obtain CUSHNIE’s prior written consent, you may not copy, reproduce, republish, upload, post, repost, transmit or distribute any part of the site(s) in any manner whatsoever, except for your personal, non-commercial viewing purposes. You may view the content of the site(s) on your computer or other Internet compatible device, and make single copies or prints of the content of the site(s) for your personal, internal use only. The site(s) and the services offered on or through the site(s), including any content and materials thereon, are only for your personal, non-commercial use. Any commercial distribution, publishing or exploitation of the site(s), or any content, code, data, or materials therein, is strictly prohibited unless you have received the prior written permission of CUSHNIE or the applicable rights holder. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell, or otherwise exploit any content, code, data, or materials on the site(s). If you make other use of the site(s), or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States of America, other countries, as well as applicable local and state laws and may be subject to liability for such unauthorized use. CUSHNIE will enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
TRADEMARKS AND COPYRIGHTS
CUSHNIE owns, or has a valid right from a third party to use, all copyrights for all material on the site(s) and all trademarks, service marks, trade names, logos, and domain names used on or in connection with the site(s). The trademarks, logos, service marks, and trade names (collectively, the "Trademarks") displayed on the site(s) are registered and unregistered Trademarks of CUSHNIE and/or others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits the rights holders. Nothing on the site(s) grants, by implication, estoppel, or otherwise, any license or right to use any Trademarks on the site(s) without the prior written permission of CUSHNIE or the third party that may own the applicable Trademark. Any modification or use of such materials or Trademarks from any of the site(s) for any purpose not explicitly permitted in writing by CUSHNIE is strictly prohibited and is a violation of these Terms. You do not receive, by implication or otherwise, any license or right to use any Trademark displayed on the site(s) without the prior written permission of CUSHNIE or the applicable rights holder. CUSHNIE will enforce its Trademark rights to the fullest extent of the law, including by seeking criminal prosecution.
USER INFORMATION AND ACCOUNTS
You are responsible for your use of the site(s), and for any use of the site(s) and its/their content made using your account. You warrant and agree that you shall not: (a) use the site(s) for any purpose that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; impersonate any person or entity or misrepresent your affiliation with any other person or entity; (b) upload, post, publish, transmit, reproduce, distribute, or in any way exploit any information or other material obtained through the site(s) for commercial purposes (other than as expressly permitted by the provider of such information or other material); or (c) attempt to gain unauthorized access to other computer systems through the site(s).
When you use any of the site(s), you may not: (i) violate any law or regulation; (ii) violate or infringe any party’s intellectual property, privacy, publicity, or other legal rights; (iii) make statements or post materials that constitute or contain false or misleading indications of origin, endorsements, or statements of fact; (iv) use or attempt to use any "deep link," "scraper," "crawler," "robot," "bot," "spider," "data mining," "computer code" or any other automatic means of obtaining lists of products, prices, users or any other information from or through the site(s) or the services offered on or through the site(s), including without limitation any information residing on any server or database connected to the site(s) or the services offered on or through the site(s) (although CUSHNIE may allow operators of public search engines to use spiders to index materials from the site(s) for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials, and CUSHNIE reserves the right to revoke these exceptions either generally or in specific cases); (v) use automated methods to send more requests to CUSHNIE’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser; (vi) obtain or attempt to obtain unauthorized access to computer systems, materials, or information through any means; (vii) use the site(s) or the services made available on or through the site(s) in any manner with the intent to interrupt, damage, disable, overburden, or impair the site(s) or such services, including, without limitation, sending mass unsolicited messages or "flooding" servers with requests; (viii) violate the security of the site(s) or attempt to gain unauthorized access to the site(s), data, materials, information, computer systems, or networks connected to any server associated with the site(s); (ix) interfere with, attempt to interfere with or otherwise disrupt the proper working of the site(s), any activities conducted on or through the site(s) or any servers or networks connected to the site(s), including accessing any data, content or other information prior to the time that it is intended to be available to the public on the site(s); (x) send unsolicited or unauthorized advertising or commercial communications, such as spam; or (xi) stalk, harass, or harm another individual. You further agree that you may not attempt (or encourage or support anyone else's attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the site(s) or the site(s)'s services, or any content thereof, or make unauthorized use thereof. You agree that you will comply with and respect all robots.txt files. You agree that you will not use the site(s) in any manner that could damage, disable, overburden, or impair the site(s) or interfere with any other party's use and enjoyment of the site(s). You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the site(s).
You agree that you shall not upload, post, transmit, distribute, or otherwise publish through the site(s) or any service offered on or through the site(s), any materials that (i) restrict or inhibit any other user from using and enjoying the site(s) or the site(s)'(s) services; (ii) are fraudulent, unlawful, threatening, abusive, harassing, libelous, defamatory, hateful, racist, aggressive, obscene, vulgar, offensive, pornographic, profane, sexually explicit, indecent or otherwise objectionable or inappropriate; (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law; (iv) violate, plagiarize, or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, patent, moral rights, confidentiality, contract, rights of privacy or publicity, or any other proprietary right; (v) contain a virus, spyware, or other harmful component or malicious or unsolicited software; (vi) contain advertising, chain letters, or pyramid schemes of any kind; or (vii) constitute or contain false or misleading indications of origin, endorsement, or statements of fact. You alone are responsible for the content and consequences of any of your activities. You further agree not to impersonate any other person or entity, whether actual or fictitious, including anyone from the site(s) or CUSHNIE. CUSHNIE is not responsible for any materials posted to this site(s) by any third parties. However, CUSHNIE reserves the right at all times to disclose any information as necessary to satisfy any law, regulation, or government request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, that in CUSHNIE's sole discretion are objectionable or in violation of these Terms, CUSHNIE's policies, or applicable law.
You agree not to link from any other website to any of the site(s) in any manner such that the site(s), or any page of the site(s), is not viewable in its entirety in a user interface, "framed," surrounded or obfuscated by any third party content, materials or branding. We reserve the right to revoke your right to link to the site(s) from your website at any time upon written notice to you.
USER GENERATED CONTENT
As between you and CUSHNIE, you own and are entirely responsible for any data, text, software, music, sound, photographs, graphics, images, videos, messages, or other content or materials (collectively, "user content") that you may submit, transmit, upload, post, email, or otherwise make available on or through any of the site(s). All user content is and will be considered non-confidential and non-proprietary. You acknowledge and agree that you waive any moral (or similar) rights that you may have in any territory in respect of user content, including but not limited to the right to be attributed as the author of the user content and the right not to have the user content edited or changed in a way you are not happy with.
By providing CUSHNIE and/or the site(s) with user content, you hereby grant to CUSHNIE and its affiliates, representatives, and assigns, a worldwide, non-exclusive, fully paid, royalty-free, transferable, sub-licensable, unrestricted, perpetual, irrevocable, license and permission to use, copy, reproduce, modify, adapt, translate, create derivative works of, transmit, display, print, publish, distribute and perform any and all of your user content (in whole or in part) in connection with the site(s) and/or to incorporate your user content in other works in any form, media or technology now known or later developed, without further consent or notice to you, including for promotional and commercial purposes, and to authorize others to do all or any of the foregoing. You acknowledge and agree that you have no expectation of compensation or confidentiality of any nature with respect to any user content. We may exercise these rights without notice to you and without paying any compensation to you. CUSHNIE reserves the right to display advertisements in connection with your user content and to use your user content to advertise and promote your user content, the site(s), and CUSHNIE and its products. CUSHNIE reserves the right to modify user content in its sole and absolute discretion. CUSHNIE is not required to host, display, or distribute any user content, and may remove, delete or destroy any user content at any time and for any reason or no reason in CUSHNIE's sole discretion.
You represent and warrant that: (a) your user content is original to you, no other party has any rights thereto, and you own all rights in your user content (including, without limitation, all rights to the audio, video, or digital recording, and the performance contained in your user content) or, alternatively, you have acquired all necessary rights in your user content to enable you to grant to CUSHNIE the rights in your user content described herein; (b) your user content is not confidential or secret, and no confidential or fiduciary relationship is intended or created between you and us; (c) you have paid and will pay in full all license fees, clearance fees, and any other financial obligations, of any kind, arising from any use or commercial exploitation of your user content; (d) you are the individual pictured or heard in your user content, or, alternatively, you have obtained permission from each person (including consent from parents or guardians for any individual under the applicable age of majority) who appears or is heard in your user content to enable you to grant the rights to CUSHNIE described herein; (e) you will make such permissions available to CUSHNIE upon request; (f) your user content does not violate, misappropriate or infringe any copyright, trade secret, trademark, privacy right, publicity right or other intellectual property right of any other third party and that any “moral rights" in your user content have been waived; and (g) your user content complies with these Terms. You agree to keep all records necessary to establish that your user content does not violate any of the foregoing representations, warranties and promises and to make such records available to CUSHNIE upon CUSHNIE's request.
You further agree that CUSHNIE and its affiliates are free to use for any purpose whatsoever, ideas, know-how, concepts, techniques, comments, criticisms, reports, or other feedback other than user content (“Feedback"), whether oral or written, that you may send to CUSHNIE or its affiliates. You acknowledge and agree that (i) you have no expectation of compensation or confidentiality of any nature, and that CUSHNIE has no duties to you, with respect to such Feedback, and (ii) CUSHNIE has the right (but not the obligation) to use such Feedback for any purpose without notice to you and without paying any compensation to you. All Feedback is and will be considered non-confidential and non-proprietary.
CUSHNIE reserves the right, but does not have an obligation, to monitor and/or review user content. CUSHNIE does not endorse or control the user content transmitted or posted on the site(s) and therefore CUSHNIE is not responsible for user content and CUSHNIE does not guarantee the accuracy, integrity, or quality of user content, which may not necessarily reflect the views of CUSHNIE. You understand that by using the site(s), you may be exposed to user content that is offensive, indecent, or objectionable to you. Under no circumstances will CUSHNIE be liable in any way for any user content, including, without limitation, for any errors or omissions in any user content, or for any loss or damage of any kind incurred by you as a result of the use of or reliance on any user content submitted, transmitted, uploaded, posted, emailed, or otherwise made available via the site(s). CUSHNIE has no control over user content once it leaves the site(s), and it is possible that others may duplicate user content on other sites on the Internet.
You acknowledge that CUSHNIE has the right – though not the obligation – in Our sole discretion to refuse to post or remove any user content and it reserves the right to change, condense, edit, modify, transmit, display, or delete any user content and you waive any rights you have in having the material altered or changed in a manner not agreeable to you. Without limiting the generality of the foregoing or any other provision of these Terms, CUSHNIE has the right to remove any user content that violates this User Generated Content Policy or is otherwise objectionable, and we reserve the right to refuse service and/or terminate access without prior notice for any user who violates these Terms or infringes the rights of others.
You agree that if you include a link from any other website to cushnie.com or to any of the site(s), such link shall open in a new browser window. You agree not to link from any other website to cushnie.com or to any of the site(s) in any manner such that the site(s), or any page of the site(s), is "framed," surrounded or obfuscated by any third party content, materials or branding. We reserve the right to revoke your right to link to the site(s) from your web site at any time upon written notice to you.
CUSHNIE reserves the right to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, that in CUSHNIE's sole discretion are objectionable or in violation of these Terms, CUSHNIE’s policies or applicable law.
Nothing contained herein shall be construed as a restriction on or waiver of any consumer’s right to make any statement regarding CUSHNIE or its employees or agents, or concerning CUSHNIE's goods or services.
NOTICES OF CLAIMED COPYRIGHT INFRINGEMENT
CUSHNIE respects the intellectual property rights of others. CUSHNIE will remove user content or other applicable content that violates copyright law and terminate the accounts of repeat infringers. Pursuant to 17 U.S.C. § 512, CUSHNIE has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your work or content has been copied and posted to the site in a way that constitutes copyright infringement, please provide Our designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the "DMCA"): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed upon; (c) a description of where the material that you claim is infringing is located on the site; (d) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) your name, address, telephone number and email address (if available); and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
Please email all of the information listed above to our Customer Care department at firstname.lastname@example.org.
You agree to defend, indemnify, and hold CUSHNIE, its parent company, their respective affiliated and related companies, and each of their respective directors, officers, members, managers, employees and agents harmless from any and all damages, claims, liabilities, costs and expenses, including reasonable attorneys' fees, which any of them may incur arising in any way from your misuse of the site(s), your placement or transmission of any message, content, information, software, or other user content or Feedback through the site(s), or your breach or violation of the law or of these Terms. CUSHNIE reserves the right, at its own expense, but is not obligated, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to fully cooperate with CUSHNIE’s defense of such claim. This provision does not require you to indemnify CUSHNIE for any unconscionable commercial practice by CUSHNIE or for CUSHNIE’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the sites or any services provided hereunder.
THIRD PARTY WEBSITES
CUSHNIE is not responsible for third party websites that link to or from any of the site(s). The inclusion of any link to such third party websites on any of the site(s) does not imply Our endorsement, sponsorship, or recommendation of that site or of any product or service offered by that site. We do not promise that the contents of any such third party sites are accurate, compliant with local, state or federal law, including any intellectual property laws. CUSHNIE disclaims all responsibility for any viruses or malicious code that may appear on any third party websites, and for the accuracy of any of the information provided on such linked sites and any goods or services provided or purchased from such site. Any reliance on the contents of a third party website is done at your own risk and you assume all responsibilities and consequences resulting from such reliance. CUSHNIE shall not be held liable or responsible for the content of any sites that link to or from any of the site(s).
We reserve the right to refuse any order you place through the sites. We may, in our sole discretion, limit or cancel quantities of products purchased per person, per household or per order. These restrictions may include orders placed by or under the same Account, the same credit card, the same email address, or orders that use the same promotion code, billing or shipping address. In the event that we make a change to or cancel an order, we will attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. Additionally, we may limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, distributors or any other unauthorized party. You are not permitted to resell any products or services purchased through any of the sites for commercial purposes.
Product availability on the sites is not guaranteed as products may be low in stock or out of stock when an order is completed. Products displayed on the sites may not be available in certain stores, or vice versa. Prices for a product (including sales) may vary between the sites and stores or between geographies.
PRICING AND OTHER ERRORS
We have made every effort to display as accurately as possible the colors and features of our products on the sites. However, the particular technical specifications, displays and settings of your electronic device could affect the accuracy of the display. We are not responsible if information made available on the sites is not accurate, complete or current.
From time to time, information on the sites might contain typographical or visual errors, inaccuracies, or omissions that may relate to product descriptions, pricing or availability. It is your responsibility to monitor changes to the sites. Any reliance on the information on the sites is at your own risk. We may, but have no obligation to, correct any errors, inaccuracies or omissions, and to update or modify the site Content without prior notice.
Prices and availability of products and services are subject to change without notice. We reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged and we cancel your order, we will issue the credit to your credit card. Individual bank policies dictate when this amount is credited to your account.
The sites may contain sweepstakes, contests or other promotions requiring you to send materials or information to us (and sometimes others). Such sweepstakes, contests or promotions may be governed by a separate set of rules, policies and terms. It is your responsibility to read such rules, policies and terms to determine whether you can participate, register and comply therewith. By participating in a sweepstakes or contest through the sites, you signify your agreement and acceptance of these Terms and any applicable sweepstakes or contest rules which we may provide.
DISCLAIMER OF WARRANTIES
The site(s), including, without limitation, all services, content, functions, and materials, is/are provided "as is" and "as available," without warranty or conditions of any kind, either express or implied, including, without limitation, any warranties or conditions for information, data, data processing services, uptime, or uninterrupted access, any warranties or conditions concerning the availability, accuracy, usefulness, or content of information, and any warranties or conditions of title, non-infringement, merchantability, or fitness for a particular purpose, and we hereby disclaim any and all such warranties and conditions, express and implied, to the maximum extent permitted by applicable law. We do not warrant that the site(s) or the services, content, functions, or materials contained therein will be timely, secure, uninterrupted, or error free, or that defects will be corrected. We make no warranty that the site(s) will meet user's requirements. No advice, results or information, whether oral or written, obtained by you from us or through the site(s) shall create any warranty not expressly made herein. Using the Internet may expose you to certain risks. Neither CUSHNIE nor its parent or affiliates assumes any responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the site(s) or your downloading of any materials, data, text, images, video, or audio from the site(s). If you are dissatisfied with the site(s), your sole remedy is to discontinue using the site(s).
We cannot, and do not, guarantee the correctness, precision, thoroughness, or completeness of any of the information available on the site(s), nor will we be liable for any inaccuracy or omission concerning any of the information provided on the site(s).
The foregoing exclusions of express and implied warranties do not apply to the extent prohibited by local laws. Please refer to your local laws for any such prohibitions.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
LIMITATION OF LIABILITY
In no event, including but not limited to negligence, to the maximum extent permitted under applicable laws, shall CUSHNIE, its parent company, their respective affiliates, or any of their directors, officers, members, managers, employees, agents, or content or service providers (collectively, the “Protected Entities") be liable for any direct, indirect, special, incidental, consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the site(s) or the content, materials, and functions related thereto, your provision of information via the site(s), lost business or lost sales, profits, or goodwill, even if such Protected Entity has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to certain users. In no event shall any of the Protected Entities be liable for or in connection with any content posted, transmitted, exchanged, or received by or on behalf of any user or other person on or through the site(s).
CUSHNIE'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THESE TERMS WILL BE LIMITED TO ONE HUNDRED DOLLARS (USD $100.00).
NOTWITHSTANDING THE FOREGOING, THESE LIMITATIONS OF LIABILITY DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
We and our service providers control and operate the site(s) from the United States of America. We do not represent that materials on the site(s) are appropriate or available for use in locations outside of the United States of America. Persons who choose to access the site(s) from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. All parties to these Terms waive their respective rights to a trial by jury.
CUSHNIE may terminate, change, suspend or discontinue any aspect of the site(s) or the site(s)'s services at any time. If you violate any of these Terms, your permission to use the site(s) automatically terminates.
Our failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
These Terms constitute the entire agreement between the parties relating to the site(s) and supersede any and all other agreements, oral or in writing, with respect to the site(s). These Terms are personal to you, and you may not assign your rights or obligations to anyone.
The sections on indemnification, limitation of liability, and disclaimer of warranties do not apply to New Jersey residents.
All rights not expressly granted herein are reserved.
Please direct questions or comments about the sites, these Terms, or any products you purchased through the sites to:
C/O Cushnie, LLC
251 W 39th Street
New York, NY 10018
Effective Date: October 5, 2016