Terms of Use

TERMS OF USE OF BADGLEYMISCHKA.COM
 
This site (the "Site") is operated by Mitchell Simone, L.L.C., a Missouri limited liability company, d/b/a BadgleyMischka.com, and its affiliates (collectively, "BADGLEYMISCHKA.com" or "we" or "us"). By accessing or using this Site (or any part thereof), you agree to be legally bound by the terms and conditions that follow (the "Terms of Use") as we may modify them from time to time. These Terms of Use apply to your use of this Site, including the BADGLEYMISCHKA.COM services offered via the Site. They constitute a legal contract between you and BADGLEYMISCHKA.COM, and by accessing or using any part of the Site you represent and warrant that you have the right, power and authority to agree to and be bound by these Terms of Use. If you do not agree to the Terms of Use, or if you do not have the right, power, and authority to agree to and be bound by these Terms of Use, you may not use the Site. Notwithstanding anything to the contrary herein, if you and BADGLEYMISCHKA.COM have entered into a separate written agreement that covers your use of a BADGLEYMISCHKA.COM service, the terms and conditions of such agreement shall control with respect to such service to the extent they are inconsistent with these Terms of Use.  BY ACCEPTING THE TERMS OF USE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THESE TERMS JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
 
Registration
 
            In order to access some features of the Site, you may be required to register to select a password and user name, which shall consist of an e-mail address you provide and a screen name ("User ID").  To register, use the registration form available by clicking the "register" link near the top of any page on the Site.  If you register, you agree to provide us with accurate and complete registration information, and to inform us immediately of any updates or other changes to such information.  Registration is necessary if you wish to post content to, or participate in the Site other than simply by reading product information and content and reviews posted by others.  For example, you may not (i) enter, select or use a false name or an e-mail address owned or controlled by another person with the intent to impersonate that person, or (ii) use as a User ID a name subject to any rights of a person other than yourself without appropriate authorization.  Failure to comply with the terms of this paragraph shall constitute a material breach of these Terms of Use, which may result in immediate termination of your account.  In addition, we reserve the right to refuse registration of, or cancel a User ID in our discretion.
 
Content
 
The information, data, text, software, photographs, images, graphics, organization, layout, design, and other content contained on or provided through this Site (collectively, the "Content") are proprietary to BADGLEYMISCHKA.COM and its licensors, and are protected by copyright and other U.S. and international intellectual property rights, laws and treaties. The Content includes proprietary databases (the "Database") of service providers' information, which, by way of example, include information, text, photographic and other images and data contained therein (collectively, the "Information") and the proprietary organization and structures for categorizing, sorting and displaying such Information, and the related software ("Software"). The Site, Content, Database, Information, Software and any portion of the foregoing, including any derivatives, successors, updates or modifications provided thereto and any information derived from the use of the Database, including as a result of the verification of any portion of the Information, are collectively referred to herein as the "Product".
 
Prohibited Uses
 
The Product is for personal and commercial use.  You shall not: (a) distribute, disclose, copy, reproduce, display, publish, transmit, assign, sublicense, transfer, provide access to, use or sell, directly or indirectly (including in electronic form) any portion of the Product, or (b) modify or create derivative works of any portion of the Product.
 
Notwithstanding anything to the contrary herein, you shall not:

1.               Copy or distribute any part of the Product in any medium without BADGLEYMISCHKA.COM's prior written authorization;

2.               Use or distribute any Information from the Product, including Information that has been verified or confirmed by you or anyone else, to directly or indirectly create or contribute to the development of any database or product;

3.               Modify, merge, decompile, disassemble, translate, decode or reverse engineer any portion of the Product, or use any data mining, gathering or extraction tool, or any robot, spider of other automatic device or manual process, to monitor or copy any portion of the Product;

4.               Use, reproduce, publish or compile any portion of the Product for the purpose of selling or licensing any portion of the Product or making any portion of the Product publicly available;

5.               Store, copy or export any portion of the Product into any database or other software;

6.               Take any action (including submitting recommendations) that would undermine the review and rating process under the Product;

7.               Upload, post, e-mail or otherwise transmit any information, data, text, software, photographs, images, graphics, or other content to or through the Product, or use any portion of this Product in a manner, that:

a.                is unlawful, threatening, abusive, harmful, libelous, tortious, defamatory, false, misleading, obscene, vulgar, racially or ethnically offensive or otherwise objectionable;

b.               infringes any patent, copyright, trademark, trade secret, or other proprietary right of any party or violates the privacy or publicity rights of any party;

c.                constitutes unlawful advertising or fraudulent, unfair or deceptive practices, "spam", or any other form of unlawful solicitation, including any non-solicitation law, which, with limited exceptions, prohibits anyone from knowingly selling, giving or receiving, for the purpose of selling or offering for sale any property or service to persons listed therein, any list of names and addresses contained in or derived from public records;

d.               contains software viruses or any other computer code, files or programs that are designed to or have the capability to interrupt, modify, damage, improperly access, disable, destroy or limit the functionality of the Product or servers or networks connected thereto or the activities of other users of the Product or of any computer software or hardware or telecommunications equipment; or

e.                you do not have a right to transmit under any law, contractual obligation (i.e., nondisclosure agreement) or fiduciary duty;

8.               Impersonate any person or entity, or falsely state or otherwise misrepresent any registration information, or otherwise disguise the origin of any information, data, text, software, photographs, images, graphics, or other content posted on or transmitted through the Product; and

9.               Use any portion of the Product to encourage or engage in illegal activity, stalk or harass another person, or violate these Terms of Use or any applicable local, state, national or international law, rule, regulation or ordinance, including without limitation, state and local real estate practice, spam or privacy laws.
 
Termination
 
You acknowledge and agree that BADGLEYMISCHKA.COM may interrupt or terminate or block your access to the Product or portions thereof at any time.  In the event that occurs, you shall cease using any portion of the Product, permanently delete or destroy all portions of the Product within your possession, custody or control, and, upon written request from BADGLEYMISCHKA.COM, certify, in writing, your compliance with this provision.
 
Submitted Content
 
This Product may include opportunities for users to submit information, data, text, photographs, images, graphics, and other content to the Product, for it to be publicly displayed on the Product, used by BADGLEYMISCHKA.COM in connection with placing consumers to service providers, or for some other purpose ("Submitted Content"). BADGLEYMISCHKA.COM acknowledges that if you provide BADGLEYMISCHKA.COM with any information or images, then you retain any applicable ownership rights that you may have with respect to such information and images. However, you understand that all such Submitted Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such content originated. This means that you, and not BADGLEYMISCHKA.COM, are entirely responsible for all such content that you upload, post, e-mail or otherwise transmit to or via the Product. BADGLEYMISCHKA.COM is under no obligation to post or use any such Submitted Content you may provide and may remove any such content at any time in BADGLEYMISCHKA.COM's sole discretion.
 
With respect to all Submitted Content you elect to upload, post, e-mail or otherwise transmit to or via the Product, you grant BADGLEYMISCHKA.COM and its affiliates and their licensees a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license (through multiple tiers) to use, reproduce, adapt, perform, display, publish, translate, prepare derivative works from, modify, distribute, sell, and take any other action with respect to such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. You further acknowledge and agree that BADGLEYMISCHKA.COM may preserve any such content and may also disclose such content in its discretion.
 
You represent and warrant that (a) you own or have the full right, power and authority to grant to BADGLEYMISCHKA.COM use of and rights in and to all Submitted Content that you upload, post, e-mail or otherwise transmit to or via the Product; (b) your license of such content to BADGLEYMISCHKA.COM hereunder does not, and the use or license of such content by BADGLEYMISCHKA.COM to third parties will not, infringe any right or interest owned or possessed by any third party; and (c) there are no claims, judgments or settlements to be paid by you, or pending claims or litigation, relating to such content.
 
BADGLEYMISCHKA.COM does not endorse and is not responsible or liable for any Content, Service Provider Content, data, advertising, products, goods or services available or unavailable from, or through, any service providers. You agree that should you use or rely on such Content, service provider Content, data, advertisement, products, goods or services, available or unavailable from, or through any service provider, BADGLEYMISCHKA.COM is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any service provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such service provider exclusively and do not involve BADGLEYMISCHKA.COM. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging service providers.
 
You agree that BADGLEYMISCHKA.COM is not responsible for the accessibility or unavailability of any service provider or for your interactions and dealings with them, waive the right to bring or assert any claim against BADGLEYMISCHKA.COM relating to any interactions or dealings with any service provider, and release BADGLEYMISCHKA.COM from any and all liability for or relating to any interactions or dealings with service providers.
 
               The Content available through the Product may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of BADGLEYMISCHKA.COM, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole.  Your interactions with organizations and/or individuals found on or through the Product, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals.  You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.

                You agree that BADGLEYMISCHKA.COM shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that BADGLEYMISCHKA.COM is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release BADGLEYMISCHKA.COM, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and / or our service.  


Information about You
 
When you use the Product, BADGLEYMISCHKA.COM collects both personally and non-personally identifying information about you and your use of the Product. Such information includes (a) what you intentionally submit to us while using the Product, including, for example, by filling out forms with your contact information or by logging in with your User ID and password, and (b) information that may be collected automatically while you use the Product, including, for example, your IP address, your IP host, session duration, and "click stream" data that tracks user activity in the Product.

We generally use or disclose the information we collect through the Product to conduct research on and to improve the Product, to perform customer service and support, to fulfill your requests for services, and to provide you with information regarding our services, including service-related announcements.
 
BADGLEYMISCHKA.COM takes steps to protect the security of the personally identifiable information we collect including, for example, physical, electronic, and procedural safeguards.
 
Although the Product can technically be viewed by children, we do not knowingly request personally identifiable information from them nor does the Product publish content that is targeted to children. No information should be submitted to, or posted at, the Product by visitors under 18 years of age.  By agreeing to the Terms and Conditions, you represent and warrant that you are above the age of eighteen (18).
 
If you have a further question, please notify us by e-mail at Lori@MitchellSimone.com. We will do our best to look into your request and respond promptly.
 

Links; Framing

 

Linking to any page of the Site other than to http://www.BadgleyMischka.com through a plain text link is strictly prohibited in the absence of a separate linking agreement with BADGLEYMISCHKA.COM.  Any web site or other device that links to http://www.BadgleyMischka.com or any page available therein is prohibited from (a) replicating the Product, (b) using a browser or border environment around the Product, (c) implying in any fashion that BADGLEYMISCHKA.COM or any of its affiliates are endorsing it or its products, (d) misrepresenting any state of facts, including its relationship with BADGLEYMISCHKA.COM or any of its affiliates, (e) presenting false information about BADGLEYMISCHKA.COM products or services, and (f) using any logo or mark of BADGLEYMISCHKA.COM or any of its affiliates without express written permission from BADGLEYMISCHKA.COM.  Except as set forth in the preceding sentence, or as otherwise authorized by BADGLEYMISCHKA.COM in writing, links to and the framing of the Product is prohibited. The Product may include links to other sites, some of them operated by BADGLEYMISCHKA.COM and some of them operated by third parties. Under no circumstances shall BADGLEYMISCHKA.COM be deemed to be associated or affiliated with, or viewed as endorsing or sponsoring, any web site that links to this Site, or is linked to from this Site, or any services that may be offered through such web sites. BADGLEYMISCHKA.COM has not necessarily reviewed any or all of the content of such other web sites, and we disclaim responsibility for the content and services available therein. Different terms and conditions may apply to your use of any linked sites. It is your responsibility to review any such terms and conditions in connection with your use of any such sites. Any issues or disputes that may arise with respect to any such sites shall solely be between you and the applicable third party.
 
Information Regarding Accuracy, Completeness and Timeliness of Information in the Product
 
The Product is provided for general information only and should not be relied upon or used as the basis for making significant decisions without consulting primary or more accurate, more complete or timelier sources of information. Any reliance upon the Product shall be at your own risk. Neither we, nor any third party involved in creating, producing or delivering the Product, is responsible if the Product is not accurate, complete or current. Neither we, nor any third party involved in creating, producing or delivering the Product, has any responsibility for any consequence relating directly or indirectly to any action or inaction that you take based on the Product.
 
No Warranties
 
ALTHOUGH BADGLEYMISCHKA.COM MAKES EFFORTS TO PROVIDE AN ACCURATE PRODUCT, THE PRODUCT AND ALL PARTS THEREOF ARE PROVIDED "AS IS", "WITH ALL FAULTS", AND "AS AVAILABLE". BADGLEYMISCHKA.COM AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, MEMBERS, EMPLOYEES AND THIRD PARTY SUPPLIERS (COLLECTIVELY, THE "BADGLEYMISCHKA.COM PARTIES") DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE LICENSED PRODUCT, (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; (4) THE PRODUCT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY BADGLEYMISCHKA.COM PARTY, AND (5) THAT ACCESS TO OR USE OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. ANY RELIANCE UPON THE PRODUCT IS AT YOUR OWN RISK AND THE BADGLEYMISCHKA.COM PARTIES MAKE NO WARRANTIES.
 
BADGLEYMISCHKA.COM RESERVES THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE PRODUCT OR ANY FEATURE OR PART THEROF AT ANY TIME. IF YOU DOWNLOAD ANY CONTENT FROM THIS PRODUCT, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT.
 
THESE DISCLAIMERS ARE INDEPENDENT OF ANY OTHER TERM IN THESE TERMS OF USE.
 
Limitation of Liability
 
YOU ACKNOWLEDGE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BADGLEYMISCHKA.COM PARTIES WILL NOT BE HELD LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO ANY PERSONAL INJURIES ARISING FROM SERVICE PROVIDERS, ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE PRODUCT, OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE PRODUCT, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE PRODUCT. IN ADDITION, IF YOU HAVE NOT PAID ANY FEES TO BADGLEYMISCHKA.COM TO ACCESS THE PRODUCT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NONE OF THE BADGLEYMISCHKA.COM PARTIES SHALL BE LIABLE FOR ANY DIRECT DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THE PRODUCT, THESE TERMS OF USE, OR YOUR USE OR INABILITY TO USE ANY OF THE FOREGOING. THESE LIMITATIONS OF LIABILITY INCLUDE DAMAGES FOR ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS, COMPUTER VIRUSES, YOUR LOSS OF PROFITS, LOSS OF DATA, UNAUTHORIZED ACCESS TO AND ALTERATION OF YOUR TRANSMISSIONS AND DATA, AND OTHER TANGIBLE AND INTANGIBLE LOSSES.
 
UNDER NO CIRCUMSTANCES WILL ANY OF THE BADGLEYMISCHKA.COM PARTIES BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ANY OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURIES, LOST PROFITS, ARISING OUT OF, BASED ON, OR RESULTING FROM, OR IN CONNECTION WITH THE PRODUCT, THESE TERMS OF USE, OR YOUR USE OR INABILITY TO USE ANY OF THE FOREGOING, EVEN IF BADGLEYMISCHKA.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION OF DAMAGES IS INDEPENDENT OF THE EXCLUSIVE REMEDY DESCRIBED ABOVE AND SURVIVES IN THE EVENT SUCH REMEDY FAILS.
 
NONE OF THE BADGLEYMISCHKA.COM PARTIES SHALL HAVE ANY LIABILITY FOR ANY DAMAGES RESULTING FROM ANY FAILURE TO PERFORM ANY OBLIGATION HEREUNDER OR FROM ANY DELAY IN THE PERFORMANCE THEREOF DUE TO CAUSES BEYOND BADGLEYMISCHKA.COM'S CONTROL, INCLUDING, WITHOUT LIMITATION, INDUSTRIAL DISPUTES, ACTS OF GOD OR GOVERNMENT, PUBLIC ENEMY, WAR, FIRE, OTHER CASUALTY, FAILURE OF ANY LINK OR CONNECTION WHETHER BY COMPUTER OR OTHERWISE, OR FAILURE OF TECHNOLOGY OR TELECOMMUNICATIONS OR OTHER METHOD OR MEDIUM OF STORING OR TRANSMITTING THE PRODUCT.
 
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
 
ALL OF THESE LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR FORM OF ACTION, WHETHER THE DAMAGES ARE CLAIMED UNDER THE TERMS OF A CONTRACT, TORT OR OTHERWISE, AND EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION ARISING OUT OF OR PERTAINING TO THESE TERMS OF USE MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
 
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BADGLEYMISCHKA.COM CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF ADVERTISING FEES TO BADGLEYMISCHKA.COM THROUGH THE USE OF A CREDIT CARD (A "CREDIT CARD PROCESSOR"). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR BADGLEYMISCHKA.COM, INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE "RELEASED PARTIES") SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN) SUFFERED BY YOU AS A RESULT OF THE FAILURE OF BADGLEYMISCHKA.COM TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BADGLEYMISCHKA.COM. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF BADGLEYMISCHKA.COM TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BADGLEYMISCHKA.COM. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS PARAGRAPH.
 
User Data
 
If you create any settings, surveys, fields or functions in the Product or input, add or export any data into or from the Product (collectively, the "User Data"), none of the BADGLEYMISCHKA.COM Parties shall have any liability or responsibility for any of such User Data, including the loss, destruction or use by third parties of such User Data. It is your responsibility to make back-up copies of such User Data.
 

Your Liability

 

If you cause a technical disruption of the Product, you agree to be responsible for any and all liabilities, costs and expenses (including reasonable attorneys' fees and costs of enforcement) arising from or related to that disruption. Upon your breach of any term of these Terms of Use, BADGLEYMISCHKA.COM's remedies shall include any damages and relief available at law or in equity as well as interruption and/or termination of your access to the Product or any portion thereof and permanent deletion or destruction of all portions of the Product within your possession, custody or control. If BADGLEYMISCHKA.COM retains any third party to obtain any remedy to which it is entitled under these Terms of Use, BADGLEYMISCHKA.COM shall be entitled to recover all costs, including attorney's fees or collection agency commissions, BADGLEYMISCHKA.COM incurs.
 
Indemnity
 
You agree to indemnify, defend, and hold harmless the BADGLEYMISCHKA.COM Parties from and against any third party action, suit, claim or demand and any associated losses, expenses, damages, costs and other liabilities (including reasonable attorneys' fees), arising out of or relating to your (and your users') Submitted Content, use or misuse of any portion of the Product, or your violation of these Terms of Use. You shall cooperate as fully as reasonably required in the defense of any such claim or demand. BADGLEYMISCHKA.COM and any third party involved in creating, producing, or delivering the Product reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, at your expense, and you shall not in any event settle any such matter without the written consent of BADGLEYMISCHKA.COM and any such third party.
 

Cookies

 

Some areas of this Product use and require that your computer accept "cookies". Cookies are small text files that are stored on your computer to keep track of settings or data for a particular web site. Cookies make it possible and easier for you to access and use certain areas of this Product. If you have disabled cookies from within your browser, or if you are running third-party software that intercepts or deletes cookies, you may not be able to visit certain areas of the Product.
 
Trademarks
 
The Product employs various trademarks and service marks of BADGLEYMISCHKA.COM and of other third parties. All of these trademarks and service marks are the property of their respective owners. You agree not to use or display them in any manner without the prior written permission of the applicable trademark owner.
 

Procedure for Making Notification of Claims of Copyright Infringement

 

BADGLEYMISCHKA.COM and its affiliates respect the intellectual property of others, and we ask those posting or transmitting any content to or through this Site to respect copyright law. It is the policy of BADGLEYMISCHKA.COM to restrict and/or terminate in appropriate circumstances the ability to submit content and/or use this Product by individuals or entities that repeatedly submit infringing content in violation of these Terms of Use. If you believe that your work has been copied and is available on this Site or our other online services in a way that constitutes copyright infringement, you may notify BADGLEYMISCHKA.COM according to the notice requirements of the Digital Millennium Copyright Act. Pursuant to 17 U.S.C. Section 512, BADGLEYMISCHKA.COM's DMCA registered agent can be reached as follows: Lori@MitchellSimone.com.
 
Ownership
 
You acknowledge that BADGLEYMISCHKA.COM and its licensors have and shall retain exclusive ownership of all proprietary rights in or to the Product, including all U.S. and international intellectual property and other rights such as patents, trademarks, copyrights and trade secrets. This is a license agreement and not an agreement for sale. You shall have no right or interest in any portion of the Product except the right to use the Product as set forth in these Terms of Use. You acknowledge that the Software, Database, Content, Information, and Product constitute the valuable property and confidential copyrighted information of BADGLEYMISCHKA.COM and its licensors (collectively, the "Proprietary Information"). You agree to (a) comply with all copyright, trademark, trade secret, patent, contract and other laws necessary to protect all rights in the Proprietary Information, (b) not challenge BADGLEYMISCHKA.COM's and its licensor's ownership of (or the validity or enforceability of their rights in and to) the Proprietary Information, and (c) not remove, conceal, obliterate or circumvent any copyright or other notice or license, use or copying technological measure included in the Product. You shall be liable for any violation of the provisions of these Terms of Use by your employees, Independent Contractors, affiliates and agents and for any unauthorized use of the Product by such persons.
 
NOTICE -- U.S. Government Rights/Commercial Technical Data and Software Unpublished, Rights Reserved Under the Copyright Laws of the United States
 
This Site contains commercial technical data and computer software that have been privately developed and are normally vended commercially under a license or lease agreement restricting their use, disclosure and reproduction. In accordance with FAR 12.211, 12.212, 27.405(b)(2) and 52.227-19 and DFARS 227.7202, 227.7102 and 252.227-7015, as well as other applicable supplemental agency regulations, use, reproduction, disclosure and dissemination of this commercial technical data and computer software are governed strictly in accordance with BADGLEYMISCHKA.COM's commercial license agreements, including these Terms of Use.
 
Export Restrictions
 
This Site is controlled and operated by BADGLEYMISCHKA.COM from its offices within the United States. BADGLEYMISCHKA.COM makes no representation that any portion of the Product or other material accessed through this Site is appropriate or available for use in other locations, and access to them from other countries where their contents are illegal is prohibited. Those who choose to access the Product or the Site from other locations do so at their own volition and are responsible for compliance with applicable local laws. You may not export or re-export any portion of the Product except in full compliance with all United States laws and regulations, and this Terms of Use. In particular, no portion of the Product may be exported or re-exported into (or to a national or resident of) any country to which the United States embargoes goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.
 
Jurisdiction
 
BADGLEYMISCHKA.COM is headquartered in the State of Missouri of the United States. These Terms of Use and your use of this Product shall be governed by the laws of the State of Missouri without regard to its conflicts of laws principles. The federal and state courts located in the State of Missouri shall be the exclusive jurisdiction for any action brought against BADGLEYMISCHKA.COM in connection with these Terms of Use or use of the Product. You irrevocably consent to the jurisdiction of the federal and state courts located in the State of Missouri for any action brought against you in connection with these Terms of Use or use of the Product. All disputes arising outside of the United States shall be settled by arbitration held in London, England and in accordance with the Rules of Arbitration and Conciliation of the International Chamber of Commerce. All arbitrators shall be fluent in English and all documents submitted in connection with the arbitration shall be in English. Judgment upon an arbitration award may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement. If any material in this Product, or your use of the Product, is contrary to the laws of the place where you are when you access it, or if BADGLEYMISCHKA.COM is not licensed as required by applicable laws or regulations in such locale, the Product is not intended for you, and we ask you not to use the Product. You are responsible for informing yourself of, and complying with, the laws of your jurisdiction.
 
Modifications to Product; Changes to these Terms
 
BADGLEYMISCHKA.COM is continuously updating and changing the Product, and reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Product (or any part thereof) with or without notice. You agree that BADGLEYMISCHKA.COM shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Product (or any part thereof). Additionally, we reserve the right, in our complete, sole, absolute, and unmitigated discretion, to change these Terms of Use at any time by posting revised terms on the Product. It is your responsibility to check periodically for any changes we may make to the Product and these Terms of Use. Your continued use of this Product following the posting of changes to these terms or other policies means you accept the changes.
 
Miscellaneous
 
These Terms of Use contain the entire understanding of the parties with respect to the Product and supersede any prior oral or written statements and documents with respect to such subject matter; provided that these Terms of Use do not supersede any written license agreement between the parties. Your obligations hereunder are binding on your successors, legal representatives and assigns. You may not assign or transfer (by operation of law or otherwise) these Terms of Use or any portion hereunder, in whole or in part, without the prior written consent of BADGLEYMISCHKA.COM. In the event any portion of these Terms of Use not being of a fundamental nature is held to be invalid, illegal or unenforceable, such part shall be deemed severed from these Terms of Use without invalidating the remaining provisions of these Terms of Use or affecting the enforceability of such remaining provisions. If a provision is held to be invalid, illegal or otherwise unenforceable, it shall be deemed to be replaced with an enforceable provision that retains the intent and benefits of the original provision. No waiver by BADGLEYMISCHKA.COM of any right under or term or provision of these Terms of Use will be deemed a waiver of any other right, term, or provision of these Terms of Use at that time or a waiver of that or any other right, term, or provision of these Terms of Use at any other time. These Terms of Use apply to your use of the Product and not to any other areas, including, without limitation, BADGLEYMISCHKA.COM's research activities. Headings are for reference only. All notices to BADGLEYMISCHKA.COM pertaining to these Terms of Use will be in writing, mailed by registered or certified mail, return receipt requested, or delivered by a well-recognized overnight U.S. or international carrier, delivered to Mitchell Simone, LLC, 504 Big Bear Blvd., Ste. C, Columbia, MO 65202. BADGLEYMISCHKA.COM reserves the right to amend these Terms of Use at any time and without notice, and it is your responsibility to review these Terms of Use for any changes.  Your use of the BADGLEYMISCHKA.COM Website following any amendment of these Terms of Use will signify your assent to and acceptance of its revised terms.  
 

Force Majeure

 

The Website contains functionalities and services that allow sending, delivering or receiving information between users, which may be relayed or carried through BADGLEYMISCHKA.COM, public, third parties' or other networks, systems, servers, websites or applications (e.g. telephone and cellular networks, email servers etc.) (the "Third Parties' Network"). The Third Parties' Networks are not controlled by BADGLEYMISCHKA.COM in any way and BADGLEYMISCHKA.COM shall not be responsible for the performance, availability, functionality, quality or reliability of any of the Third Parties' Networks or the information sent, delivered, relayed, carried or received through the Third Parties' Networks. Notwithstanding anything herein, BADGLEYMISCHKA.COM does not warrant or guarantee that the information sent, relayed, carried or delivered through these Third Parties' Networks will reach its destination or its correct address or recipient or that the details of the recipient or sender are correct or accurate. BADGLEYMISCHKA.COM shall not be liable for, and excused from, any failure to deliver or perform, or for any delay in delivery or performance, due to causes beyond its reasonable control, after exercising its best commercially reasonable efforts to remedy any such failure or delay, including without limitation any government actions, fire, work stoppages, civil disturbances, interruptions of power or communications to BADGLEYMISCHKA.COM or any facilities used by or for BADGLEYMISCHKA.COM, failure of internet, hosting, telecommunications, or other services to BADGLEYMISCHKA.COM or facilities used by or for BADGLEYMISCHKA.COM, natural disasters, acts of God, or acts of terrorism or war.
 
General
 
You agree that no joint venture, partnership, employment, or agency relationship exists between you and BADGLEYMISCHKA.COM as a result of these Terms and Conditions or your use of the Website.
 
BADGLEYMISCHKA.COM's performance under these Terms and Conditions is subject to existing laws and legal process, and nothing contained in these Terms and Conditions is in derogation of BADGLEYMISCHKA.COM's right to comply with law enforcement requests or requirements relating to your use of this Website or information provided to or gathered by BADGLEYMISCHKA.COM with respect to such use.
 
If you are found to be in breach or violation of these Terms and Conditions, you agree to pay the actual damages suffered by BADGLEYMISCHKA.COM, including, but not limited to, attorney fees and court costs, to the extent such actual damages can be reasonably calculated.  Notwithstanding any other provision of these Terms and Conditions, BADGLEYMISCHKA.COM reserves the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms and Conditions.
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