ACCEPTANCE OF TERMS
- Your access to and use of willowtreeantiquesandgifts.com (the “Website”) and all Services (as defined in Section 2), is subject exclusively to these Terms and Conditions. The terms “you”, “your” and similar pronouns refers to the person using or accessing the Website or the Services. The terms “we”, “our” and similar pronouns refers to Willow Tree Antiques and Gifts (“RCA”). This is a legally binding agreement between you and RCA; please read it carefully. Unless explicitly stated otherwise, any features or services available at any time on the Website or the Services are subject to these Terms and Conditions. Accessing the Website or the Services in any manner, even by automated means, constitutes your use of the Website or the Services and your agreement to be bound by these Terms and Conditions. If you do not accept these Terms and Conditions you must immediately stop using the Website or the Services. You may not use the Website or the Services for any purpose that is unlawful or prohibited by these Terms and Conditions.
- The material that appears on the Website is for general informational purposes only. While we aim to provide a site that is useful, be mindful that the Website may, from time to time, contain errors. The Website includes some materials and information collected from and provided by third parties that we may not have evaluated or reviewed. We make no guarantees regarding the accuracy, completeness, timeliness, or reliability of any of the materials or information on the Website, and you should not rely on it without independent verification.
- We reserve the right to update or amend (collectively, “change”) these Terms and Conditions at any time and will revise the effective date when we do so. It is your responsibility to check the Terms and Conditions regularly for any changes and to take note of the posted effective date of the Terms and Conditions. Your continued use of the Website and the Services after the posted effective dates constitutes your agreement to be bound by these Terms and Conditions as modified, provided however, that such modifications shall not apply to any disputes arising prior to the effective date of the changes. Accordingly, you hereby agree that your continued use of the Website constitutes your waiver to contest the enforceability of any such changes (whether for lack of notice or otherwise). Please do not use the Website if you disagree with the provisions of this paragraph 1.3. Otherwise, your continued use is to be deemed conclusive acceptance thereof.
2.1 The “Services” consist of the Website and any functions provided by, through, or in conjunction with the Website, including but not limited to website content, email, telephone messages, and text messages. Unless stated otherwise, the Services are for your personal and non-commercial use only. The Services are not for use by users under the age of 18. By registering for the Services, you represent to us that you are over the age of 18, and warrant that you shall not allow persons under the age of 18 to use or access the Services.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY. DO NOT USE THE WEBSITE OR REGISTER FOR THE SERVICES IF YOU DO NOT WISH TO COMPLY:
2.2 By either filling out our contact form in order to use the Services, you give us express written consent to contact you by phone, or e-mail, or text messages to (i) provide notices regarding your account or account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. You agree that we may contact you using autodialed or prerecorded message calls and text messages to carry out the purposes we have identified above. We will not share your phone number(s) with third parties for their own purposes without your consent. Standard telephone minute and text charges may apply. We will not use autodialed or prerecorded message calls or texts to contact you for marketing purposes at the telephone number(s) you designate unless we receive your prior express written consent. You do not have to consent to receive autodialed or prerecorded message calls or texts in order to use the Services. YOU EXPRESSLY AGREE THAT WE MAY CONTACT YOU EVEN IF YOU HAVE PREVIOUSLY REGISTERED YOUR PHONE WITH A FEDERAL OR STATE “DO NOT CALL” REGISTRY. You have the right to withdraw your consent and may opt-out of receiving phone calls by contacting us in any of the methods listed in the “Contact” section of the Website. In addition, you may opt-out of e-mails by clicking the “unsubscribe” link in any e-mail we send to you, and may opt-out of text messages by replying “STOP” to text messages you receive from us. If you opt-out and then re-enable any of these services, you will be deemed to have again given us your express written consent to contact you via any services you re-enable.
USER ACCOUNT, PASSWORD AND SECURITY
In order to use the full functionality of the Services, you may be required to create a user account. If so, you will be required to complete the registration process by providing certain information and registering a username and password for use with the Services. You are responsible for maintaining the confidentiality of the username and password and also for all activities that take place under your user account. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. In no event will RCA be liable for any indirect or consequential loss or damage whatsoever resulting from the disclosure of your username and/or password. You may not use another person’s user account at any time without the express permission of the account holder.
- With regard to the use of the Services, including any and all Content that you upload, send, post, e-mail, or otherwise transmit while using the Services, you represent that (i) you are the true owner of or have and will have at all times sufficient rights, without limitation, to upload the Content; (ii) the Content does not and will not violate: (a) the copyrights, patents, trade secrets, trademarks, service marks or other intellectual property rights; (b) other property rights; (c) privacy rights; or (d) any other proprietary rights of any other person, business, or entity; and (iii) transmission of the Content does not and will not violate any laws or breach any licenses or other agreements to which you are a party. Except as specifically permitted by law, you may not post, modify, distribute, or reproduce in any way copyrighted or other proprietary materials without obtaining the prior written consent of the copyright owner of such materials.
- You acknowledge that all Content, whether posted publicly or transmitted privately over, by, or in connection with the Services are the sole responsibility of the person from whom such Content originated. We do not control or endorse the Content and cannot guarantee the accuracy, integrity or quality of such Content and you acknowledge that by using the Services you may be exposed to Content that is inaccurate, offensive or indecent. RCA will not be liable in any way for any Content or for any loss or damage of any kind resulting from the use of or reliance on any Content transmitted via the Services and you agree to bear all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content.
- In using the Services, you agree not to upload, send, post, e-mail, or otherwise transmit via the Services any Content that (i) contains viruses other code or software that damages, destroys or interferes with (or is intended to damage, destroy, or interfere with) the communications networks or computer systems of RCA, or our employees, contractors, affiliates, or customers, (ii) contains unlawful, tortious, libelous, defamatory, abusive, racist, harassing, or threatening material, or is invasive of another’s privacy, another’s right of publicity, is pornographic (including but not limited to child pornography), or otherwise objectionable as determined by us in our sole discretion, or (iii) constitutes unsolicited commercial bulk email (spam), or is prohibited by the CAN-SPAM Act of 2003, or any other applicable law regulating e-mail services.
- We shall be entitled, at our sole discretion, to remove any material that breaches these Terms and Conditions or is otherwise objectionable.
- You may not use the Services to interfere with, gain unauthorized access to, or otherwise violate the security of our (or another party’s) network, servers, computers, other control devices, software, or data, or to attempt to do any of the foregoing. Examples of system or network security violations include but are not limited to:
- Unauthorized monitoring, scanning or probing of networks or systems or any other action aimed at the unauthorized interception of data or the harvesting of e-mail addresses;
- Use any forged, false or misleading number identity, email header, invalid or non-existent domain names in email or postings nor employ techniques to hide, obscure or counterfeit the source of e-mail or other posting;
- Hacking, attacking, gaining access to, breaching, circumventing or testing the vulnerability of the user authentication or security of any host, network, server, personal computer, network access and control devices, software or data without express authorization of the owner of the system or network;
- Impersonating others or secretly or deceptively obtaining personal information of third parties (phishing, etc.);
- Using any program, file, script, command or transmission of any message or content of any kind, designed to interfere with a terminal session, the access to or use of the Internet or any other means of communication; except in the case of authorized legitimate network security operations, distributing or using tools designed to compromise security (including but not limited to SNMP tools), including cracking tools, password guessing programs, packet sniffers or network probing tools; or programs that may damage the operation of another’s network, system, computer or other property; or
- Sharing any user name and/or password you have on the RCA site with any other persons.
We reserve the right to immediately and without notice suspend or terminate your account or any of the Service if we reasonably believe that you have violated these Terms and Conditions. We have no obligation to provide you with notice of an alleged violation. We may at any time, at our sole discretion, discontinue the Services or any part thereof without prior notice and you agree that we shall not be liable to you or any third party for any termination of your access to the Services.
LINKS TO THIRD PARTY WEBSITES
COMPLIANCE WITH LAWS
- You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States of America or the country in which you reside (if different) and with all local laws and rules regarding acceptable use of and conduct on the Internet.
- You agree and acknowledge that (i) the export, import, and use of certain software, and technical data that may be provided as part of the Services are subject to domestic and foreign U.S. laws (including the U.S. Export Administration Act and the regulations implemented thereunder by the U.S. Department of Commerce, the U.S. Foreign Corrupt Practices Act (“FCPA”), and all foreign laws similar to the FCPA) (all such laws and regulations collectively referred to herein as “Export Laws”), as the same may be amended from time to time, (ii) the transmission of Content via the Services may be subject to all domestic and foreign privacy laws applicable to the provision of Services (including the Electronic Communications Privacy Act (together with the Stored Communications Act),the Federal Trade Commission Act, the U.S. Patriot Act, the Children’s Online Protection Act, state privacy laws (including the California Online Privacy Protection Act (“CalOPPA”)), state wiretap laws, and, together with all respective federal and state regulations implementing those laws, as the same may be amended from time to time (all such laws and regulations collectively referred to herein as “Privacy Laws”), and (iii) agree to strictly comply with all Privacy Laws and Export Laws applicable, directly or indirectly, to your operation or use of the Services or your transmission of Content thereby.
- INTELLECTUAL PROPERTY RIGHTS The Services, the Website and content contained therein (including without limitation the Website design, text, graphics and all software and source codes connected with the Website and the Services) are protected by copyright, trademarks, patents and other intellectual property rights and laws that are owned by RCA or other third parties from whom RCA has the right to display such intellectual property. In accessing the Services you agree that you will access the contents solely for your personal, non-commercial use. None of the content may be downloaded, copied, reproduced, transmitted, stored, sold or distributed without the prior written consent of the copyright holder. We hereby grant you a limited, personal, and non-exclusive license to copy and/or print pages viewed through the Website or the Services for personal, non-commercial use only.
For purposes of these Terms and Conditions:
- “Claim” shall mean any suit, claim, demand, cause of action, administrative, regulatory or judicial action, proceeding (including condemnation or appropriation proceedings), hearing, written notice, arbitration, investigation, request for information, litigation, charge or complaint.
- “Damages” shall mean any and all injury, damage, liability, judgment, loss, penalty, interest, cost and expense, including reasonable attorneys’ fees and court costs incurred due to, as part of, or resulting from an asserted or threatened Claim.
- You agree to indemnify, defend and hold RCA and its shareholders, members, board of directors, board of managers, officers, managers, employees, agents, independent contractors, attorneys, suppliers, vendors or representatives (collectively “RCA Affiliates”) harmless from and against (i) any and all Claims and Damages arising directly or indirectly (i) from any breach by you of these Terms and Conditions (ii) any Claim brought or threatened against RCA by any third party arising (a) out of your use of the Services or (b) by reason of or in connection with any Content submitted, posted or transmitted through the Services, howsoever such Claims or Damages are suffered or incurred by RCA as a result of (i) or (ii).
DISCLAIMERS AND LIMITATION OF LIABILITY
- WARRANTY DISCLAIMERS. USE OF THE SERVICES IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY, EXPRESS OR LIMITED, WITH RESPECT TO THE SERVICES, INCLUDING ANY AND ALL WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
- WE ARE NOT LIABLE FOR ANY DAMAGES WHATSOEVER TO THE EXTENT ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH LOST OR ALTERED MESSAGES OR TRANSMISSIONS OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS, DAMAGE OR DESTRUCTION OF YOUR CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS, EXCEPT TO THE EXTENT THAT ANY OF THE FOREGOING IS CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- NOTWITHSTANDING ANY PROVISION OF THESE TERMS AND CONDITIONS TO THE CONTRARY, NEITHER RCA OR ANY OF THEIR AFFILIATES, EMPLOYEES, AGENTS, DIRECTORS, SUPPLIERS, VENDORS, SHAREHOLDERS, BOARD OF DIRECTORS, MEMBERS, MANAGERS, OFFICERS OR REPRESENTATIVES (COLLECTIVELY, “RCA AFFILIATES”) SHALL BE LIABLE TO YOU FOR ANY LOST PROFITS, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL COSTS, LIABILITIES OR DAMAGES, WHETHER IN BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR UNDER ANY OTHER LEGAL THEORY, EVEN IF FORESEEABLE, ARISING FROM THE USE OR PERFORMANCE OF THE SERVICES, ANY INTERRUPTION OF SERVICE, OR ANY DELAY, ERROR OR LOSS OF DATA OR INFORMATION ARISING IN ANY MANNER OUT OF, OR IN CONNECTION WITH, THESE TERMS AND CONDITIONS, WHETHER OR NOT RCA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ALL CLAIMS FOR WHICH ARE HEREBY SPECIFICALLY WAIVED. TO THE EXTENT SUCH DISCLAIMER IS PERMITTED BY LAW, WE HEREBY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING COSTS, LIABILITIES OR DAMAGES CAUSED BY OUR GROSS NEGLIGENCE. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, IN NO EVENT SHALL RCA OR ANY OF THE RCA AFFILIATES’ CUMULATIVE LIABILITY UNDER THESE TERMS AND CONDITIONS AGREEMENT, TO ANY CUSTOMER OR TO ANY OF THEIR RESPECTIVE AFFILIATES, REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY OF LIABILITY, EXCEED ONE THOUSAND DOLLARS. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
- YOU ACKNOWLEDGE THAT THE SERVICES ARE NOT GUARANTEED TO BE SECURE OR FREE FROM TAMPERING, VIRUSES, OR OTHER SECURITY VIOLATIONS. ACCORDINGLY, WE HEREBY DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE SECURITY OF THE SERVICES, WHETHER OR NOT YOU HAVE IMPLEMENTED ENCRYPTION, FIREWALL PROTECTION OR ANY OTHER INTERNET SECURITY SERVICE OR DEVICE. YOU AGREE THAT THE TRANSMISSION OR USE OF CONTENT VIA THE SERVICES IS AT YOUR OWN RISK.
If any of these Terms and Conditions should be held or determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such Term or Condition shall be deemed separate, distinct and independent, and is to be deemed severed and ineffective to the extent of such holding or determination, and the remaining Terms and Conditions shall survive and remain in full force and effect and continue to be binding and enforceable.
These Terms and Conditions shall be governed by and construed in accordance with the laws of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction). Captions and headings are for reference purposes only and are not substantive provisions. Pronouns used herein include the singular and plural, and are to be deemed masculine, feminine, and neuter, as the context may require. The references to “RCA” and similar references are to an individual, corporation, partnership, limited liability company, limited partnership, limited liability partnership, or other legal entity, as the case may be. Section references refer to sections of these Terms and Conditions.
- IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. AS APPLICABLE, YOU MAY CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY.
- Binding Arbitration. The arbitration process established by this Section is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. You have the right to take any dispute that qualifies for disposition in a small claims court to that type of court rather than arbitration. All other disputes arising out of or related to these Terms and Conditions (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory) must be resolved exclusively by final and binding arbitration. This includes any dispute based on any product, service or advertising having a connection with these Terms and Conditions and any dispute not finally resolved by a small claims court. You and we are collectively referred to in this Section 14 (Arbitration) as “Parties” and each individually a “Party”.
- The arbitration will be conducted by one arbitrator using the procedures described by this Section 14 (Arbitration). If any portion of this is determined to be unenforceable, then the remainder shall be given full force and effect. The arbitration of any dispute shall be conducted in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules, as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. You have the right to be represented by counsel in an arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms.
- NO DISPUTE BETWEEN THE PARTIES MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. ANY CLAIM BROUGHT UNDER THIS AGREEMENT MUST BE BROUGHT ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF BASED ON THAT PARTY’S INDIVIDUAL CLAIM OR CLAIMS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE BARRED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS’ FEES UNLESS SUCH DAMAGES OR FEES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND RCA BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
- Arbitration Information and Filing Procedures. Before you take a dispute to arbitration or to small claims court, you must first contact our customer account representatives at email@example.com and give us an opportunity to resolve the dispute. Similarly, before RCA takes a dispute to arbitration, we must first attempt to resolve it by contacting you. If the dispute cannot be satisfactorily resolved within sixty (60) days from the date you or RCA is notified by the other of a dispute, then either Party may contact the AAA in writing at AAA Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, or may contact the AAA using AAA WebFile at adr.org, and request arbitration of the dispute. Information about the arbitration process and the AAA’s Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org or by contacting us at the address provided above. The arbitration will be based only on the written submissions of the Parties and the documents submitted to the AAA relating to the dispute, unless either Party requests that the arbitration be conducted using the AAA’s telephonic, on-line, or in-person procedures. Additional AAA charges may apply for these procedures. Any in-person arbitration will be conducted at a location that the AAA selects in the state of your primary residence. Arbitrations under this Agreement shall be confidential as permitted by federal law.
- Fees and Expenses of Arbitration. You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. The AAA’s filing fee and administrative expenses for a document arbitration will be allocated according to the AAA’s Rules. If you elect an arbitration process other than a documents-only arbitration or arbitration by telephone hearing, you must pay your allocated share of any higher administrative fees and costs for the process you select. You also may ask the AAA about the availability of a pro bono arbitrator and/or a waiver or deferment of fees and expenses from the AAA; more information about the AAA’s rules and policies is available at the AAA’s Web site, at www.adr.org. Unless applicable substantive law provides otherwise, each Party will pay its own expenses to participate in the arbitration, including attorneys’ fees and expenses for witnesses, document production and presentation of evidence. If you prevail before the arbitrator, however, you may seek to recover the AAA’s fees and the expenses of the arbitrator from us. If we prevail before the arbitrator, and if we show that you acted in bad faith in bringing your Claim, then we may seek to recover the AAA’s fees and expenses of the arbitrator from you.
- THIS SECTION 14.0 (ARBITRATION) DOES NOT APPLY TO MEMBERS IN THE STATE OF CALIFORNIA
YOU MAY HAVE CERTAIN RIGHTS UNDER STATE LAW THAT APPLIES TO THIS SECTION 14.0 (ARBITRATION) AND POSSIBLY TO OTHER SECTIONS OF THIS AGREEMENT. YOU SHOULD CONSULT YOUR ATTORNEY ABOUT SUCH RIGHTS BEFORE ENTERING INTO THIS AGREEMENT FOR THE SERVICE.