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Terms and Conditions
These Terms and Conditions of Use (the "Agreement") are between you and Nooka Inc. (the "Company"). In consideration of the right to access and use the website located at the Universal Resource Locator addresses www.nooka.com, www.nookawatch.com, www.fairylaborunion.com, www.fairyunion.com, www.berrymatch.com or www.matthewwaldman.com (the "Site" or the "Website"), and to receive the services offered through the Website, you agree to the terms and conditions of use set forth in this Agreement and acknowledge that you are at least 13 years of age.
This Agreement applies to the Services (as described below) currently offered by the Company and any Services that the Company may choose to offer in the future (unless stated otherwise).
The Website and the Services are available only to, and may only be used by individuals and entities able to form legally binding contracts under applicable law. The Services offered hereunder are not available to children (persons under the age of 13) or to any user who has been suspended from the site, whose use has been restricted for any reason or whose registration has been revoked. If you are under the age of 13, you can use this service only in conjunction with, and under the supervision of, your parents or guardians. If you do not qualify, please do not use the Website or the Services. If you are acting on behalf of any entity or organization, you warrant and represent that you have the authority to bind the entity to these Terms and Conditions.
YOUR USE OF THE WEBSITE OR THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AND INDICATES YOUR WILLINGNESS TO BE BOUND BY THESE TERMS AND CONDITIONS.
The Website presents information and content including, but not limited to, articles, opinions, text, data, software applications, commentary, advertisements, graphics, illustrations, calendars, designs, games, reviews, video and audio files, programs, code, and photos, in addition to User Generated Content (as defined herein) (collectively, "Content"), that is owned or licensed by the Company, its subsidiaries and affiliates (together, "Nooka"). The Site may also include materials owned by third parties and posted on the Site by virtue of a license, grant or some other form of agreement between the third party and Nooka. When used in these Terms and Conditions, "we", "us" and "our" mean Nooka.
The Content contained on this Website is for general information use only and has not been verified by Nooka. Nooka does not make any representations as to the accuracy or completeness of Content or assume any liability for any loss that may result from the reliance by any person upon any Content we provide. Any statements non-factual in nature constitute only current opinions, which are subject to change without notice.
Through the Website, you may be able to review Content (as defined herein), upload and download files, register for membership, purchase products, make donations, sign up for events, pay for goods and services, communicate and establish relationships with other users, and post information, opinions and comments (together, the "Services"). Nooka reserves the right to change, suspend and discontinue any aspect of the Services at any time including, but not limited to, the nature of the services offered, databases, hours of availability, and software needed for access or use. Notwithstanding anything herein to the contrary, Nooka reserves the right to permit or restrict access to any user in its sole discretion.
Profiles, Blogs and Boards
Nooka offers original and third party information on the Website. You may be invited to provide custom screen names, icons, and profile information created by you (together, "Profile Information"); and you may be permitted to comment on, post, transmit or submit messages, ideas and other materials, which may include uploading files, inputting data, providing personal information, submitting opinions or engaging in any form of communication ("Content") that you submit, post and display on the Website or through the Services (collectively, "User Generated Content") to other Website users, blogs, bulletin boards and public areas within or in connection with the Site or in connection with the Services provided hereunder (collectively "Forums"). In submitting User Generated Content to Forums, you agree to strictly limit yourself to discussions about the subject matter for which the Forums are intended.
User Generated Content
Nooka does not endorse and has no control over User Generated Content submitted by you or others and accepts no responsibility whatsoever in connection with or arising therefrom. User Generated Content submitted through the Site is not necessarily reviewed by the Company prior to posting and does not necessarily reflect the opinions or policies of the Company. If at any time the Company chooses, in its sole discretion, to monitor the Forums, the Company nonetheless assumes no responsibility for User Generated Content, no obligation to modify or remove any inappropriate or inaccurate User Generated Content, and no responsibility for the conduct of the user submitting any User Generated Content. The Company makes no warranties, express or implied, as to the suitability, accuracy or reliability of any Content and other materials on the Website. Nonetheless, the Company reserves the right to prevent you from submitting User Generated Content and to edit, restrict or remove any User Generated Content for any reason at any time. You agree that Nooka shall accept no liability if we prevent, in our sole discretion, your User Generated Content from being submitted, or we edit, restrict or remove it. You also agree to permit any other user of this Site and any third-party website on which your User Generated Content may be included, to access, view, store and reproduce the material for such user's personal use.
Certain portions of this Website may offer you the ability to send (by e-mail or otherwise) messages directly to the Company or another user. The Company shall have no liability for any delay, loss or damage that may result from your use of e-mail tools or from interception or unauthorized use by third parties of any information you send through our systems. You are solely responsible for your interactions with other users on and through the Website. Nooka reserves the right, but has no obligation, to monitor disputes between you and other users.
In the event a dispute arises between you and Nooka or any third party, please e-mail the Company at info@Nooka.com and we will work quickly towards a resolution. We encourage you to report all user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity.
Ownership and Use of Content
All of the Content is owned or licensed by Nooka and is protected by worldwide copyright laws and treaty provisions, unless otherwise indicated. You may make and use printouts of the Content for your personal, non-commercial use only, provided that the printouts retain all copyright, trademark and other proprietary notices. Use of the Content on any other website or in a networked computer environment for any purpose, or any other republication or redistribution of the Content, including, without limitation, framing the Content within another website, is expressly prohibited without the prior written permission of Nooka. Please contact us at info@Nooka.com with any licensing inquiries.
By providing your Profile Information and/or User Generated Content or engaging in any form of communication on or through the Website, you hereby grant the Company a perpetual, world-wide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, and edit any User Generated Content which you may provide. You hereby waive all rights to any claim against the Company for any alleged or actual infringements of any intellectual property rights, proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with such User Generated Content. By submitting User Generated Content, you represent to the Company that such content is original, you are its rightful owner or that you have first obtained permission from the rightful owner to submit it, and that you have the authority to assign or license to the Company all rights, title and interest as set forth herein in and to such User Generated Content. You acknowledge that the Company has detrimentally relied upon this representation. Accordingly, you further agree to defend, hold harmless and indemnify the Company from and against any and all claims of alleged or actual infringements of any intellectual property rights, proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution raised by third parties against the Company in connection with such User Generated Content.
You agree to release Company, its parents, partners, contractors and affiliates together with their respective employees, agents, officers, directors and shareholders, from any and all liability and obligations whatsoever in connection with, or arising from, your use of the Forums or the Services. If at any time you are not happy with the Website or the Services or object to any Content, your sole remedy is to cease using them.
Advertisements and Third Party Content
Limitation of Use
You agree that you will neither post User Content nor submit User Generated Content to Forums that:
Furthermore, you acknowledge and agree that you will not: (i) collect or store personal data about other users of the Website, including collecting user names or email addresses of users by electronic or other means for the purpose of sending unsolicited email, (ii) upload, e-mail or otherwise transmit any material or User Generated Content that contains viruses or any other computer code, files or programs that might interrupt, limit or interfere with the functionality of any computer software, hardware, database or file that is owned, leased or used by Nooka, the Website, or its users; or (iii) submit unwanted messages by e-mail or otherwise ("Spam") or post User Generated Content that disparages or insults any user.
The Digital Millennium Copyright Act of 1998 ("DMCA")
The DMCA provides recourse to those who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by us infringe your copyright, you may send us a notice requesting that we remove the material or block access to it. The notice must include the following information:
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet current statutory requirements imposed by the DMCA; see http://www.copyright.gov/ for details. Notices and counter-notices under the DMCA, as well as all other communications addressed to us relating to this Agreement, should be sent to:
Fridman Law Group, PLLC, 287 Spring Street, New York, NY 10013
We strongly suggest that you consult your legal advisor before filing a notice or counter-notice. Also, please be aware that penalties may apply for false claims under the DMCA.
Nooka and third party trademarks and service marks may or may not be designated as such from time to time on the Site through use of the SM, TM or ® symbols. Except when included in any authorized printouts of the Content, you are not authorized to make any use of any names, logos or taglines posted on the Site, whether or not designated by such symbols, including, but not limited to, as metatags or in any other fashion without the express prior written permission of the Company.
Registration and Security
In connection with your use of the Website, you may establish or otherwise receive from Nooka user IDs, passwords and other security codes ("User Codes") that you may need in order to access and use certain portions of the Website.
You agree to provide true, accurate, current and complete information about yourself as prompted by the registration form ("Registration Info") and maintain and promptly update the Registration Info to keep it true, accurate, current and complete. You hereby authorize Nooka, directly or through third parties, to make any inquiries we consider necessary to validate your Registration Info. Nooka reserves all rights to vigorously pursue legal action against all persons who misrepresent personal information or are otherwise untruthful about their identity, and to suspend or cancel Accounts registered with inaccurate or incomplete information. Notwithstanding the foregoing, you acknowledge that Nooka cannot guarantee the accuracy of any information submitted by any user, nor any identity information about any user.
You are responsible for maintaining the confidentiality of your User Codes. You agree that you will be fully responsible for all activities that occur utilizing your User Codes, and that Nooka is not under any duty to inquire as to the authority or propriety of any instructions provided via your User Codes, or to otherwise verify the identity of anyone using your User Codes. You agree that Nooka shall not be responsible for damages or losses resulting from any breach of security caused by your failure to maintain the confidentiality of your User Codes. If you permit access to your User Codes by third parties, then you agree to defend, indemnify and hold Nooka harmless against any liability, losses, damages or costs and expenses (including attorneys' fees) arising out of, or resulting from, such access and related use of the website. Nooka reserves the right to block access to the Website for any reason. You also agree to immediately notify Nooka if you become aware of any loss or theft of your User Codes or any unauthorized use of your User Codes.
For your protection, Nooka may require the use of encryption technologies for certain types of communications conducted through the Website. While we may provide those technologies and might use other reasonable precautions to protect confidential information and provide suitable security, we do not guarantee or warrant that information transmitted through the Internet is secure, or that such transmissions will be free from delay, interruption, interception or error.
Some of the Content and/or Products may be offered to you conditioned on entering into a financial transaction through the Website. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. By entering into any transaction through the Site, you warrant and represent that all information you provide is true and correct (including, without limitation your credit card number, expiration date and address), that any credit card transactions authorized by you are authorized, and that you are the legal holder of any credit card or payment account used to enter into any transaction on or through the Website.
In the event (a) your credit card is not valid, (b) Nooka determines, in its sole discretion that a transaction is unauthorized, (c) your credit card can not be processed at the time of any charge or renewal charge, as the case may be, or (d) any charge is disputed for any reason other than failure by Nooka to deliver the Product and/or services purchased by you, Nooka reserves the right to immediately terminate any pending transactions, suspend your access to the Website and Products, thereby terminating this Agreement and all of Nooka's obligations hereunder, and, in addition, to charge you an administrative processing fee equal to 10% of the total billable amount, which charge you hereby authorize by entering into any transaction through the Website. In the event of a subscription service, the credit card on file for your account will be billed automatically either on a month to month or yearly basis depending on the original Agreement between you and Nooka. Notwithstanding the foregoing, you agree that any formal payment disputes lodged with any credit or payment card company shall be invalid unless (x) you notify Nooka within 60 days from date of the applicable transaction that you wish to dispute any charge relating thereto, and (y) that you have made reasonable, good faith efforts to resolve such dispute with Nooka directly, and such efforts have failed.
Prices and Payments
You agree pay all charges or fees applicable to your account, including taxes, in accordance with the billing terms that were in effect at the time the charges or fees became payable. Nooka reserves the right to change the amount of, or the basis for determining, any charges or fees for the use of the Website or Products and to institute new charges or fees (such new charges or fees will only be instituted with prior notice to you).
Returns & Exchange Policy
Customer satisfaction is our goal. Watches, Jewelry, Belts and Wallets: You may receive a full refund if your Nooka product is returned in its original condition within 14 days after purchase. Only the amount paid for the product itself will be refunded; charges for shipping, handling, taxes and related fees and expenses will not be refunded. If the product is returned in its original condition within 30 days after purchase, the customer may receive a replacement item or store credit, at Nooka's sole discretion. Defective watches are covered by our manufacturers warranty for a period of 90 days following purchase. After the expiration of the 90 day warranty period, Nooka may provide watch repair services, which will be subject to your prepayment of all estimated costs for parts and labor.
For all inquiries regarding returns and defective items, please email email@example.com before sending your watch to us, in order to verify the correct local shipping address and ensure timely processing of your request. Please check www.nooka.com/service.aspx for known issues, fixes and Frequently Asked Questions. We reserve the right to replace defective merchandise with similar models. Watch bands are not covered by this policy if returned more than 30 days after purchase or if they exhibit wear-and-tear. t-shirts: t-shirts may be returned for a store credit only if they have not been worn and only within 14 days after purchase.
Note on Delivery to Non-U.S. Addresses
The products ordered by you will be delivered to you at the address provided by you on check-out using the method of shipping designated by you . Delivery charges listed on the Website cover freight only. Your purchase may also be subject to the taxes, customs and export fees of the jurisdiction in which the products are received. You acknowledge that it is your sole responsibility to comply with and abide by those laws and regulations, and that you are solely responsible for such fees.
Not all of the products and Services offered through the Website are available in all geographic areas, and we reserve the right to restrict any user from purchasing any product or receiving any Service made available through the Website at any time, without notice. The information provided on the Website is not directed at, or intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or any non-United States jurisdiction or country that would subject Nooka or its affiliates to any registration requirement within such jurisdiction or country.
THE SERVICES, CONTENT AND WEBSITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY USER FOR ANY ACTS OF FRAUD, THEFT, MISAPPROPRIATION, TAMPERING, HACKING, INTERCEPTION, PIRACY, MISUSE, MISREPRESENTATION, DISSEMINATION, OR OTHER ILLEGAL OR UNAUTHORIZED ACTIVITIES OF THIRD PARTIES. YOU UNDERSTAND AND EXPRESSLY AGREE THAT THE USE OF THE SERVICES AND THE WEBSITE AND ALL THEIR CONTENTS IS AT YOUR SOLE RISK, THAT ANY AND ALL CONTENT, MATERIAL AND DATA UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU, YOUR PROPERTY OR ANY THIRD PARTY OR THIRD PARTY'S PROPERTY THAT RESULTS FROM THE USE OF THE WEBSITE OR SERVICES.
TO THE EXTENT THAT THE LAW DOES NOT PERMIT THE DISCLAIMER OF WARRANTIES, ALL CONTENT AND SERVICES ACCESSIBLE ON THE WEBSITE, OR ANY OTHER WEBSITE TO WHICH IT IS LINKED, AND ALL OPERATIONS OF THE WEBSITE AND THE SERVICES ARE WARRANTED ONLY TO THE MINIMUM AMOUNT LEGALLY REQUIRED.
IN USING THE WEBSITE AND THE SERVICES, YOU SPECIFICALLY AGREE THAT YOU WILL NOT HOLD NOOKA OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND SUPPLIERS LIABLE TO YOU OR ANY PARTY FOR ANY DAMAGES OR INJURY OR LOSS, INCLUDING ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE WEBSITE, CONTENT AND SERVICES (OR ANY OTHER DATA OR LINKED WEBSITE) OR OTHERWISE RELATING TO OR ARISING OUT OF THE WEBSITE, EMAIL, FORUMS, THE SERVICES OR YOUR USE THEREOF, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION. NOOKA SHALL NOT BE LIABLE EVEN IF NOOKA OR AN AUTHORIZED REPRESENTATIVE OF NOOKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM LIABILITY OF NOOKA, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND SUPPLIERS FOR ANY CLAIM OR ACTION RELATING TO THE SITE OR THE SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID BY YOU TO NOOKA IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE ACTION GIVING RISE TO LIABILITY, AND (B) $100.
(a) You agree to indemnify, defend and hold harmless Nooka, its officers, directors, employees, consultants, agents and representatives from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees, costs and expenses) that result from, arise out of or are in anyway connected with your use of the Services or Website, your breach of the terms of this Agreement, or your infringement, or infringement by any other person using your account, of any intellectual property or other right of any person or entity. The terms of this Agreement will inure to the benefit of Nooka's successors, assigns and licensees. (b) The Services, the Websites and all related products are designed for personal and legal uses only. It is your responsibility to comply with all federal, state and local laws, rules and ordinances when using the Services, the Website and any related products. You shall indemnify and hold harmless Nooka, officers, directors, employees, consultants, agents and representatives for any and all claims, actual or threatened, actions, damages, liabilities, costs and expenses (including reasonable attorneys' fees, costs and expenses) that result from, arise out of or are in any way connected with your use of the Services, the Website and any related products. (c) You covenant to cooperate fully in the defense of any claim.
Term & Termination
The term of this Agreement shall commence when you first visit the Website, view the Content or use the Services and shall apply to all of your subsequent visits and uses, provided that nothing herein shall prohibit us from refusing or otherwise restricting access to any user for any reason at any time, in our sole discretion. Nooka may, with or without cause, immediately terminate this Agreement without notice, and deny you access to the Website and/or the Services in its sole discretion. Without limiting the foregoing, Nooka has the right to immediately terminate any passwords or accounts created by you in the event that you breach this Agreement or engage in conduct that Nooka, in its sole discretion, considers unacceptable. If this Agreement is terminated, you will no longer be authorized to access any areas of the Website and/or use the Services. Without limiting any other rights Nooka has, you understand and acknowledge that Nooka, in its sole discretion, may pursue legal and/or equitable relief against you if you breach or threaten to breach these Terms and Conditions.
The Content on this website and these Terms and Conditions are subject to change and updating by Nooka and our affiliates, partners, contractors, agents and representatives at any time without prior notice. The changes may include superseding terms and conditions or specific notices. YOU SHOULD REVIEW THESE TERMS AND CONDITIONS FROM TIME TO TIME TO BE AWARE OF ANY CHANGES THAT ARE MADE. Your continuing use of this website constitutes your acceptance of any change or update, all of which shall become controlling when posted.
Applicable Law; Jurisdiction
These Terms and Conditions set forth the entire understanding and agreement between you and us with respect to the subject matter hereof. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected thereby. Except as described herein, you may not assign these Terms and Conditions without our explicit consent. You are responsible for fees associated with gaining access to the Website, including the fees associated with the equipment necessary to access the Internet and the fees charged by your internet service provider.
The Website and Services provided hereunder are offered by Nooka, Inc., located at 16 West 36th Street Suite 1302, New York, NY 10018. If you are a New York resident, you may have this same information e-mailed to you by sending a letter to the foregoing address with your e-mail address and a written request for this information.