Terms of Service
Last Updated: August 8, 2024
THIS TERMS OF SERVICE ("Agreement") governs the use of all Services (as defined herein) provided by NB44, LLC, a California limited liability company, doing business as "NB44" ("Company" or "NB44" or "We" or "Us" or "Our").NB44 IS A FASHION RETAILER THAT OFFERS A VARIETY OF SERVICES, INCLUDING WITHOUT LIMITATION, EXPERT STYLING, AND THE USE OF PROPRIETARY TECHNOLOGY AND UNIQUE PRODUCTS TO DELIVER A PERSONALIZED LUXURY SHOPPING AND MEMBERSHIP EXPERIENCE.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "SERVICE" OR "SERVICES" COLLECTIVELY MEANS THE PARTICULAR SCOPE OF SERVICE(S) THAT IS/ARE MADE AVAILABLE TO THE APPLICABLE CUSTOMER (INCLUDING WITHOUT LIMITATION THE NB44 PRODUCTS MADE AVAILABLE TO THE CUSTOMER) PURSUANT TO THE THEN-EXISTING PAYMENT SCHEDULE AND TERMS OF THE CUSTOMER'S REGISTRATION, AS WELL AS THE COMPANY'S SERVICE OF MAKING THE COMPANY PROGRAMS AVAILABLE TO THE CUSTOMER (AS SUCH TERMS ARE DEFINED HEREIN).
THIS AGREEMENT GOVERNS ALL CUSTOMERS OF THE SERVICES ("CUSTOMER", "MEMBER", "SUBSCRIBER", "YOU", "YOUR") AND SETS FORTH THE TERMS AND CONDITIONS BY WHICH ALL SUCH CUSTOMERS ARE PERMITTED TO ACCESS AND USE THE SERVICES. USE OF THE COMPANY'S SERVICES ARE CONDITIONED ON ACCEPTANCE, WITHOUT MODIFICATION, OF THIS AGREEMENT BY ALL CUSTOMERS.
BY COMPLETING THE REGISTRATION PROCESS, BY CLICKING THE "ACCEPT" BUTTON, BY ACCEPTING ANY OF THE COMPANY'S SERVICES, OR BY CONTINUING TO USE ANY OF THE COMPANY'S SERVICES, EACH CUSTOMER HEREBY AGREES THAT THE CUSTOMER IS HEREBY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE FIRST DATE OF THE FIRST USE OF ANY SERVICE BY SUCH CUSTOMER.
NO CHANGES (ADDITIONS OR DELETIONS) BY YOU TO THIS AGREEMENT WILL BE ACCEPTED BY THE COMPANY.
EACH CUSTOMER REPRESENTS AND WARRANTS TO THE COMPANY THAT THE INDIVIDUAL THAT HAS CONSENTED TO THIS AGREEMENT HAS ALL REQUISITE POWER AND AUTHORITY TO BIND THE MEMBER TO THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN THE CUSTOMER SHOULD NOT USE THE COMPANY'S SERVICES. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT. EACH CUSTOMER SHOULD DOWNLOAD AND PRINT THIS AGREEMENT FOR ITS RECORDS.
1. Definitions
In addition to any other terms defined in the Agreement, the following terms have the following meanings:1.1. "Aggregate Information" has the meaning set forth in Section 4 herein.1.2. "Company IP Assets" has the meaning set forth in Section 5 herein.
1.3. "Company Programs" means the Company's website at www.NB44.com,and any other websites, sites, programs, mobile applications, other technology platforms or other technology application offered by the Company (now or in the future) the Company provides for the Customers access and use of the Services.
1.4. "Company Trademark(s)" means any of the Company's trademarks, service marks, names, logos or slogans.
1.5. "Customer", Member", "Subscriber", "you" or "your" have the meaning set forth above.
1.6. "Customer Content" has the meaning set forth in Section 4 herein.
1.7. "NB44 Products" means items manufactured, sold, or gifted by Company, including, but not limited to Collections and Direct Purchases (as such terms are defined in Section 8 herein).
1.8. "Provision of the Company Services" has the meaning set forth in Section 2 herein.
1.9. "Registration" has the meaning set forth in Section 8 herein.
1.10. "Service(s)" or the "Company's Services" has the meaning set forth above in this Agreement.
1.11. "Term" has the meaning set forth in Section 11 herein.
2. Provision of the Company Services; Conditions and Other Limitation on Use of Services
2.1. Subject to Member's strict compliance with all of the terms and conditions of this Agreement, the Company will make the Company's Services available to the Customer, only during the Term of this Agreement, and only in the format and only with the features and functionalities made available by the Company during the Term of this Agreement (hereinafter referred to as the "Provision of the Company Services"), provided, however: (i) the Provision of the Company Services to the Customer is limited, personal, revocable, non-assignable, non-sublicenseable, non-transferrable, and non-exclusive to the Customer; and (ii) for clarity, and without limiting the foregoing, such Customer is prohibited from transferring, sublicensing or assigning the Services to any other party (except as explicitly approved in writing by the Company, in its sole discretion), and any such unpermitted transfer, sublicense or assignment shall constitute an immediate violation of this Agreement; and (iii) the Company has the right, at any time during the Provision of the Company's Services, to amend, modify, or change in any way the underlying software, tools, tests, rules construction, content segments, and/or other configurations underlying or otherwise constituting any Company Program or any part of the Services.2.2. In addition to any other conditions set forth in this Agreement, the Customer hereby agrees to the following additional provisions governing the Services and the Provision of the Company's Services:- A Member may be required to certify that he or she is at least 18 years of age.
- Each Member is solely responsible for his/her/its usage of the Services.
- Each Member hereby acknowledges and agrees that they have voluntarily sought out and asked to receive the Company Services.
- Member is only permitted to use the Services pursuant to the terms and conditions of this Agreement and only for lawful purpose during such use.
- Without limiting the foregoing in any way, and for clarity, each Member agrees that it shall not: (i) abuse or fraudulently use the Service, (ii) use the Service in a manner that causes interference to or tampers with another subscriber's or authorized Member's use of the Services, or (iii) otherwise use the Services in a manner that violates this Agreement or any laws.
- Member may only use the Services for the Member's personal use.
- Copyright, trademark or other intellectual property infringement, including without limitation removing, altering, covering or obscuring any copyright notices or other proprietary rights notices of Company
- failure to provide legitimate contact information.
- Customer's misrepresentation of Company's Services.
- reselling or attempting to resell Company's Services without the prior written permission of the Company.
- altering, modifying, creating derivative works, converting, decompiling, disassembling or reverse-engineering any Company Program, or otherwise attempting to discover the source code to the software used for any Company Program.
- unlawful, fraudulent or illegal activities of any kind.
- violating any applicable law or regulation.
3. Termination or Suspension Of Services
3.1. The Company may suspend or terminate the Customer’s account or access rights to Services, or otherwise terminate this Agreement, at any time, without notice, for any action or conduct of the Customer that the Company reasonably believes violates this Agreement. In addition to restricting or terminating Customer's access to the Service, the Company may also remove any materials or content (including without limitation any Customer Content) that we have reasonable grounds to believe are in violation of the copyright laws or any other intellectual property of the United States or any other jurisdiction or may be otherwise illegal, may subject us to liability or that violate this Agreement.3.2. The Company may also cooperate with legal authorities and/or third parties in the investigation of any suspected criminal activity. Without limiting the foregoing in any way, each Customer hereby agrees that Company has the right to investigate occurrences that may involve any violations of this Agreement, including without limitation any matters which could involve, and cooperate with, law enforcement authorities in prosecuting the Customer involved in any such violations. In addition, Company reserves the right to cooperate with any and all law enforcement agencies, including complying with requests for information (including without limitation any Customer Content) or disclosures or any warrants, court orders or subpoenas (from any party) and disclosing to law enforcement agencies any information (including without limitation any Customer Content) about or related to any Customer and anything a Customer does with respect to the Services. BY THE CUSTOMER USING ANY SERVICE, THE CUSTOMER EXPLICITLY AUTHORIZES THE COMPANY TO TAKE SUCH ACTION.3.3. Without limiting the foregoing provisions of this Section 3 or any other provisions in this Agreement, each Customer agrees to the following additional terms and conditions:- The Company has the right, in its sole discretion, at any time or from time to time, to change, amend, modify, suspend, discontinue, cease, or otherwise terminate any or all of the features or functionalities of the Services, in whole or any parts thereof, including without limitation discontinuing the Provision of Company Services, or any portions thereof (collectively, “Change or Discontinue Support of the Company Services”); Each Customer acknowledges and agrees that, in the event the Company exercises it right under this Agreement to Change or Discontinue Support of the Company Services in any way: (i) the Services and/or any other part of the Provision of the Company Services may not operate or function, in whole or in part; and (ii) the Company shall not have any obligation or liability to the Customers (including, without limitation, not having an obligation to refund any portion of fees paid for the Services) in the event Company does exercise its right to Change or Discontinue Support of the Company Services in any way or at any time (or for any reason), including, without limitation if such action by Company renders all or any part of the Services inoperative or non-functioning; and (iii) the Company has the right to terminate this Agreement under Section 12 herein
- If the Company becomes aware of any violations or breach of this Agreement by the Customer, Company has the right (in addition to any other rights or remedies available to Company by law, contract or equity) to take any one or more of the following actions, in its discretion: (a) suspend or terminate access to the Services; or (b) terminate this entire Agreement under Section 11 herein
- All Services granted to the Customer under this Agreement will immediately terminate upon the expiration, cancellation or termination of this Agreement.
4. Use Of Customer Information And Privacy Policy
4.1. Reference is hereby made to any privacy policy which the Company makes publicly available, including without limitation by posting any such privacy policy on any website owned or controlled by the Company (hereinafter, the "Company Privacy Policy"). The Customer hereby acknowledges and agrees that: (i) all of the terms and conditions of the Company Privacy Policy are hereby incorporated into this Agreement by this reference and govern the Customer under this Agreement, including but not limited to the Customer Content and (ii) the Customer hereby agrees to be bound by, and to comply with, the Company Privacy Policy.4.2. The parties further agree as follows:- For purposes of this Agreement, the term “Customer Content” means, if applicable to a particular Customer, only the following: (1) any original, tangible, personal-identifiable information about the Customer which the Customer has provided to Company as part of: (i) the Customer’s Registration for the Services; or (ii) the Customer’s ongoing use of the Services. For clarity and the avoidance of doubt, the Customer hereby agrees that “Customer Content” does not include any Aggregate/Anonymous Data (as defined herein).
- The Customer owns all of their Customer Consent, subject, however, to the rights of the Company to use such Customer Content as contemplated by the provisions of Section 4 of this Agreement.
- By becoming a Customer or by otherwise using any Service, each Customer hereby grants to the Company a non-exclusive, global, perpetual, fully paid up, sub-licenseable, assignable, transferrable right and license to use the Customer Content for any and all of the following purposes:
- For the Provision of the Company Services by Company to Customer;
- To assist the Company with any statistical analysis and/or industry trend analysis;
- For the development, improvement or operation of the NB44 Products, services or businesses (including without limitation the Services); and
- To share or disclose to any affiliates of the Company or with any service providers, vendors, contractors, or partners of the Company (and allow the foregoing to use the same) in order to assist the Company in the Provision of the Company Services or to otherwise assist the Company in its exercise of any of the Company’s rights under this Agreement.
5. Reservation of Rights
5.1. All global rights, title and interest (including without limitation all global intellectual property rights) in and to the Services, including without limitation the underlying code or programs that operate any tools or other components of the Services, all Company Trademarks (as defined herein), all Aggregate/Anonymous Data (as defined in Section 4 herein) and all goodwill associated therewith (hereinafter collectively referred to as the "Company IP Assets") shall at all times remain the sole and exclusive property of Company. Customers are prohibited from representing, in any manner, that they have acquired any rights in the Company IP Assets beyond or in addition to the limited Provision of the Company Services expressly set forth in Section 2 above.5.2. Each Customer further agrees that: (a) any and all use of the Company IP Assets by Use as authorized by this Agreement shall inure to the sole benefit of Company; and (b) they shall not challenge Company’s exclusive rights to and ownership of the Company IP Assets, nor take any action inconsistent with Company’s exclusive rights to and ownership of the Company IP Assets.5.3. Each Customer hereby agrees that all Company IP Assets (as defined above), including without limitation the underlying Company Programs, may contain valuable trade secrets and confidential information that is owned by Company. Each Customer shall take all commercially reasonable precautions to prevent inadvertent disclosure any of the Company IP Assets, including all know how and confidential information therein. Each Customer shall not disclose any part of the Company IP Assets to anyone for any purpose except as explicitly permitted under this Agreement.6. No Resale of The Services
Customer's right to use the Services are personal to Customer. Customer agrees not to resell or redistribute, and is hereby explicitly prohibited from reselling or re-distributing, the Services without the prior express written consent of Company pursuant to terms and conditions acceptable to the Company.7. Disclaimer of Responsibility for Third Party Content
As a convenience to Customers, Company may now, or in the future, provide links to information or data provided by third parties that is not owned or controlled by Company (“Third Party Sources”). Company does not control Third Party Sources and assumes no responsibility for data, material, recommendations or any other information included in any Third Party Sources, including without limitation any subsequent links contained within a linked web site, or any changes or updates to a linked web site. Company has no control over web sites or other material hosted on such external servers. Any reference from the Company Services to any entity, product, service or information provided through a Third Party Source does not constitute an endorsement or recommendation by Company. No Third Party Source is authorized or permitted to make any representations or warranties on Company’s behalf. Your use or visit to any Third Party Source, or Your act of providing any of your personal information to the owner of any Third Party Source constitutes Your automatic agreement that Your action using such Third Party Source (including without limitation any information provided through any such Third Party Source) shall be subject to and governed by the terms and conditions of such Third Party Source, including without limitation the privacy policies of any such Third Party Source.8. Membership; Collections
8.1. To sign up to be a Member (“Membership”), the Customer or a Customer’s authorized representative, may first be required to register with the Company pursuant to the then-current registration process and procedures set forth by the Company (“Registration”). During the Registration process, the Customer or their authorized representative must provide their name, email address, other registration information including payment method, and select a password (“Account Information”), which you should not share with any third parties. In becoming a Member, you represent and warrant that: (a) all required Account Information you submit is truthful and accurate, and (b) you will maintain the accuracy of such Account Information. You may also be asked to provide additional registration information during Registration, including, but not limited to, size, fit and style preferences, as well as hobbies, interests, and reasons for joining as a Member.8.2. You are solely responsible for any and all use of your Account Information and all activities (including orders placed through the Services) that occur under or in connection with your account. We reserve the right to take whatever action we deem necessary to preserve the security of the Provision of the Services and your account, including without limitation terminating your account, changing your password, or requesting additional information to authorize transactions on your account. You agree to be responsible for any act or omission of any users that access the Services under your account. You may not use anyone else’s account at any time without the permission of the account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one account, register for an account on behalf of an individual other than yourself without such individual’s authorization, or register for an account on behalf of any group or entity. You must be at least 18 years old to be a Member.8.3. By signing up for Membership, the Member agrees: (i) that your Membership is on and annual-to-annual basis; (ii) the Company will begin sending the Customer curated and personalized deliveries of NB44 Products, selected at Our discretion, based on the information you have provided to Us (“Collection(s)”). Collections are sent at a specified cadence, without waiting for You to manually schedule each Collection. The Customer may also be able to select particular items to be included in the Collection. Upon receipt of your Collection, you will be able to try on products to see what you like. You can decide to keep all, some, or none of the NB44 Products in a Collection, and the Company will charge you for the items You keep, as described in the payments section below. If You wish to send back any of the products in your Collection, simply contact us via the app or via email at [email protected].. You may schedule a free of charge pick up by contacting us.8.4. Additionally, You may be able to select NB44 Products to be delivered separately from a Collection (“Direct Purchases”). Shipment dates for each Collection and the availability of Direct Purchases are determined at Our discretion and may vary based on a variety of factors, including, without limitation, inventory availability, geography, and automatic shipping preference.8.5. Your Membership, scheduling of a Collection or making a Direct Purchase is an offer to purchase the NB44 Products. We may accept your offer by processing your Membership Fee payment and shipping you the Collection, or by shipping the Direct Purchase. For any reason, we may decline to accept your request for a Collection. If we decline to accept your request for a Collection, we may attempt to notify you at the email address you provided. All products will be deemed accepted by you upon shipment, and title to and risk of loss passes to you when we provide the products to a common carrier. Excluding any Customer Content, we strive to ensure that the information on the Services is complete and reliable. Certain information may contain pricing errors, typographical errors and other errors or inaccuracies, which we may correct without liability. Products displayed may be out of stock or discontinued, and prices are subject to change. We reserve the right to limit quantities purchased by Members. We do not guarantee that all goods or services described on our Services will be available. In an effort to enhance Your shopping experience and give as many Customers as possible the opportunity to purchase the goods or services offered by the Company, we may place limits on purchases and we do not authorize the purchase of commercial quantities of our goods or services (including our NB44 Products). We further reserve the right to cease doing business with customers who violate this policy.9. Returns and Exchanges; Return Policy
9.1. Any NB44 Products sent back must be postmarked no later than ten (10) days after you receive the Collection (the “Try-On Period”) and must be unworn and in the original condition. You will retain title to the NB44 Products and risk of loss of the products will remain with you until we receive the products and we determine that the products were returned unworn and in their original condition, at which point you will be deemed to have rejected the products and title will return to us. We will assume that you have chosen to keep any NB44 products in the Collection that you do not postmark back to us by the end of the Try-On Period, and we will charge your account for those products any time after the end of the Try-On Period.9.2. If You wish to exchange any of the NB44 Products in a Collection (e.g., for a different size), You can request an exchange by contacting us via the app or via email at [email protected]. All requests for exchanges must be made prior to expiration of the Try-On Period, and may be granted at the sole discretion of NB44. If an exchange is available for a particular product, you may be given the choice to exchange. An exchange may not be available in all cases. If you elect to receive an exchange, return the product in its original, unworn condition using the prepaid return package by the end of the Try-On Period. The exchanged product will be sent separately to you. If You fail to return the original product by the end of the Try-On Period, or if the original product is damaged or shows signs of wear, the Company may charge You for both the original product and the exchange product. If You receive the exchange product and wish to return it, You can send it back in the pre-paid return package within ten (10) days of your receipt of the exchange product.9.3. Direct Purchases may only be exchanged, unaltered and in their original condition, within seven (7) days of receipt, and any such exchanges will be granted at the sole discretion of NB44 for store credit only. If You wish to exchange any Direct Purchases, please contact your NB44 Concierge via the app or via email at [email protected].9.4. Upon becoming a Member and signing up to receive Collections, We, our payment processing provider or a third-party service provider may attempt to verify your address and check for potential fraud. Our third-party shipping provider will also be responsible for delivering and picking up your collections at an address You provide. Such third-party providers may receive Your address information and/or contact You to ensure a smooth delivery and pick up process.9.5. The above terms and conditions govern the return or exchange of all NB44 Products, including, but not limited to Collections and Direct Purchases (hereinafter referred to as the “Return Policy”). Any exceptions to the Return Policy must be requested, in writing, and may be granted at the sole discretion of NB44.10. Payment of Membership Fees and Purchases; Payment and Billing Cycle
10.1. Prior to shipping you a Collection, we will charge you a non-refundable Membership Fee in the amount set forth on the company’s Payment Schedule. For the purposes of this Agreement, the term “Payment Schedule” means Company’s then current schedule (if any) which sets forth any fees to be paid by the Customer as a condition of NB44 Membership (“Membership Fees”), the purchase of NB44 Products in a Collection and/or Direct Purchases (“Purchase”), and any other condition regarding the Provision of the Company Services at any time during the Term of this Agreement. As consideration for the Provision of the Company Services, you agree to pay Company the applicable fees set forth on our Payment Schedule.10.2. Other than for Direct Purchases, or unless otherwise requested, the Company does not disclose the prices of its products until your Collection is shipped, at which time information regarding the Products, including pricing, will be available through NB44’s mobile application. While the Company makes efforts to follow the style and price preferences selected in the Registration process, we do not guarantee that every item in your Collection will meet those preferences. You are responsible for paying for all products in your Collection, whether they conform to your preferences or not, unless you return the products in accordance with our policies.10.3. All Membership Fees are due immediately and are non-refundable. Unless otherwise specified, billing for Membership Fees will be charged on a quarterly, annual or one-time basis, based on your selection. Each annual Membership Fee will be automatically charged upon each annual renewal from the payment method you have on file with Company, at Company’s then current Payment Schedule until your annual Membership is canceled. Cancellation of your Membership must be provided in writing within 30 days of each annual renewal. If you choose to keep products from your Collection, you will be charged for those products. If you have a credit in your Account at the time of processing the Membership Fee or making a purchase, the credit will be applied before we charge your credit card or other payment method then available.10.4. By completing the Registration process, or by submitting Your payment information to Us, each Customer hereby automatically pre-authorizes the Company to charge the Customer’s credit card or other payment method then available for any and all payments owed by the Customer at any time during the Term of this Agreement and as otherwise contemplated by this Agreement. In addition, the Customer agrees that the Company may take all remedies available to collect monies owed.THE CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT IT IS THE CUSTOMER’S OBLIGATION TO ACCESS AND REVIEW THE COMPANY’S THEN CURRENT PUBLISHED PAYMENT SCHEDULE WHICH IS IN EFFECT AT THE TIME OF THE CUSTOMER’S REGISTRATION AND, IN THE EVENT THE CUSTOMER’S RENEWAL OF ITS SERVICE(S) TO RECEIVE THE PROVISION OF THE COMPANY SERVICES, IN EFFECT AT THE TIME OF EACH SUCH RENEWAL. THE CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER IS AND WILL BE BOUND BY THE THEN-CURRENT PAYMENT SCHEDULE IN EFFECTIVE AS OF THE FOLLOWING DATES: (A) THE CUSTOMER’S REGISTRATION; AND (B) IN THE EVENT THE CUSTOMER’S MEMBERSHIP IS RENEWED, THE EFFECTIVE DATE OF EACH RENEWAL OF ITS MEMBERSHIP.
We may authorize your payment method in anticipation of service-related charges. In some instances, your available balance or credit limit may be reduced to reflect the authorization. If for any reason, Company is not able to take payment from the payment method you have on file, and you fail to pay the amount due on the invoice for the service, your service will expire. Notices of expiration will be sent via email to the email address on file on the day of expiration. Additionally, past due notices are sent via email a minimum of 3 times after the expiration date. It is your responsibility to keep current your payment method information, which includes the expiration date if you are using a credit card.
Company may participate in recurring billing and/or updater services offered by your credit card provider. If we are unable to successfully collect payment from the existing payment method on file, your credit card provider may notify us of updates to your credit card number and/or expiration date. In some cases, your credit card provider may automatically charge your new credit card on our behalf without notifying you. In accordance with recurring billing program requirements, in the event that we are notified of an update to your credit card number and/or expiration date, we will automatically update your payment profile on your behalf. We make no guarantees that we will request or receive updated credit card information. It is your sole responsibility to modify and maintain your account settings, including but not limited to (i) canceling service(s); and (ii) ensuring your associated payment method(s) are current and valid. Failure to do so may result in the interruption or loss of service(s), and we shall not be liable to you or any third party regarding the same.10.5. You are responsible for the payment of any state and local sales taxes, customs fees, and any other fees incurred that apply to your order where we elect or are required to collect and remit such taxes and fees. If we do not collect the applicable sales tax, you are responsible for payment of the applicable use taxes. The Company may provide certain promotions or credits to customers. Depending on the type of promotion or credit offered, it may reduce the amount of state and local sales taxes that apply to your order. The application of the promotion or credit will be reflected on your receipt.
11. Term and Termination
11.1. This Agreement shall continue until (i) the termination of this Agreement pursuant to the terms of this Agreement, including without limitation pursuant to Section 3 or Section 11.2 of this Agreement or (ii) the earlier cancellation, termination or cancellation of this Agreement (the “Term”).11.2. In addition to any other right of termination set forth in this Agreement, this Agreement may be terminated: (a) by Company or by the Customer for convenience upon giving the other party thirty (30) days’ notice; or (b) by the Company immediately if any one or more of the following occurs: (i) the Company exercises its right to terminate this Agreement arising out of the Company’s right to Change or Discontinue Support of the Company Services as contemplated by Section 3 of this Agreement; or (ii) the Customer fails to pay any fee or otherwise violates any of the terms set forth in the Payment Schedule; or (iii) the Customer is in violation of, or has otherwise breached, any other terms or conditions of this Agreement.11.3. Upon any type of termination, expiration or cancellation of this Agreement, all rights granted to Customer under this Agreement shall immediately and automatically cease. Without limiting the foregoing in any way, upon the effective date of such termination, expiration or cancellation:- The Services shall (and the Customer’s right to receive any more Services shall) immediately cease;
- Any use of any other Company IP Assets (as defined above) shall immediately cease; and
- All provisions of this Agreement that by their terms, nature or context are intended by the parties to survive the termination, expiration or cancellation of this Agreement shall do so.
- The Company shall retain the Customer Content for only thirty (30) days after any termination, expiration or cancellation of this Agreement, for any reason (the “Thirty Day Data Retention Period”). After the Thirty Day Data Retention Period: (i) the Company has no obligation to retain copies of, or to provide Customer with access to or copies of, the Customer Content and will have no further obligations with regard to such Customer Content; and (ii) the Company has the right to destroy any and all such Customer Content in its possession or control.
- If the Customer wants to obtain copies of the Customer Content after any termination, expiration or cancellation of this Agreement, the Customer must: (i) give Company written notice of such request before the expiration of the above defined Thirty Day Data Retention Period (“Customer’s Data Request Notice”) and (ii) pay Company’s fee for the delivery of such Customer Content (the “Copy Fee”). Provided the Customer has delivered the Customer’s Data Request Notice and paid the Company the Copy Fee within the Thirty Day Data Retention Period, the Company will deliver a copy of the Customer Content to the Customer within a commercially reasonable period of time after the expiration of the Thirty Day Data Retention Period, using a commercially reasonable format for such delivery of such copy.
12. Disclaimer of Warranty
EXCEPT FOR THE SPECIFIC RETURN POLICY SET FORTH IN SECTION 9.5 OF THIS AGREEMENT, ALL CUSTOMERS AGREE THAT USE OF THE SERVICES (AND ANY OTHER COMPANY IP ASSETS, IF ANY ARE PROVIDED) IS ENTIRELY AT CUSTOMER'S OWN RISK. THE SERVICES (AND ANY OTHER COMPANY IP ASSETS, IF ANY ARE PROVIDED) ARE PROVIDED "AS IS," AND AS AVAILABLE.WITHOUT LIMITING THE FOREGOING IN ANY WAY, THE COMPANY MAKES NO, AND HEREBY EXPLICITLY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED.
WITHOUT LIMITING THE FOREGOING IN ANY WAY, EACH CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT:
- (A) THE CUSTOMER ASSUMES THE ENTIRE RISK REGARDING THEIR USE (INCLUDING WITHOUT LIMITATION ALL LEGAL OUTCOMES ARISING OUT OF) OF THE SERVICES
- (B) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR THE COMPANY’S AUTHORIZED REPRESENTATIVES SHALL CREATE ANY REPRESENTATION OR WARRANTY OF ANY KIND.