II. INTELLECTUAL PROPERTY
As between you and Company, all right, title, and interest in and to the Site and its contents, including, without limitation, all content, graphics, images, materials, text, and videos, along with the selection, coordination, arrangement, and organization of the Site (individually and collectively, “Content”) is owned entirely by Company, or Company’s affiliates, subsidiaries, successors, assigns, licensors, and partners (individually and collectively, “Company Parties”), as applicable, and protected under domestic and international copyright and other similar intellectual property laws. Subject to your full compliance with the Terms, Company grants you permission to access and use the Site for its intended purpose of sharing information concerning the Products and other functions related to Company’s business. You shall not copy, capture, reproduce, remove, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, distribute, or exploit, in whole or in part, any Content unless otherwise explicitly permitted by these Terms, under Company’s direction or instruction, or as permitted by law. Without limiting the foregoing, you may not reproduce any Content or create copies of Content via any means, including, without limitation, by reproducing on any physical or digital media. Any unauthorized activities that infringe upon the intellectual property rights of Company or the Company Parties are expressly prohibited and all rights in and to the Content are expressly reserved. Nothing contained in the Terms should be construed as granting, by implication or otherwise, any license or right to use any Content without the express written permission of Company or the Company Parties beyond the rights to access, use, and/or view the Site as expressly contemplated herein. For the avoidance of doubt, any unauthorized use of the Content, except as explicitly authorized by these Terms, is strictly prohibited and may subject you to civil liability under copyright, trademark, publicity, or privacy, laws and other civil and criminal statutes, rules, or regulations. Company’s name, logo(s), and overall brand, including, without limitation, the trademark for August™, is protected under various domestic and international trademark laws. Additionally, you may not use other trademarks, logos, and service mark(s) of the Company Parties that may be found on the Site without such party’s prior written permission.
Company welcomes your interaction on the Site, and you may be able to submit materials to Company regarding the same, including, without limitation, reviews of products. By submitting any user generated content, comment, feedback, materials, pictures, videos, reviews, or submissions (together, a “Submission”) through the Site or otherwise, such as emailing Company about the Site or posting materials on Company’s social media pages (such as Instagram, Twitter, or Facebook) or using Company related hashtags (such as #itsaugust and #yesaugust) you grant to Company an irrevocable, royalty-free, sub-licensable, transferrable, and worldwide right and license in perpetuity, to use the Submission for any purpose, without any obligation or liability to you whatsoever, including, without limitation, the right to adapt, display, distribute, edit, exhibit, exploit, modify, publicly perform, publish, and create derivative works, of the Submission in all media in any form, including, without limitation, displaying the Submission on the Site and as part of Company’s advertising materials, with no notice to you and without owing any consideration to you. Notwithstanding anything to the contrary contained herein, Submissions are excluded from all privacy obligations owed by Company hereunder, including those provisions contained in Section VII herein. If you wish to keep a Submission private or proprietary, please do not transmit any Submission to Company or share any Submission with others.
VI. PRODUCTS, ORDERS, AND RETURNS
Additional information can be found on Company’s FAQ PAGE: https://itsaugust.co/faq.
VII. PERSONAL DATA AND PRIVACY
VIII. NEWSLETTERS/MAILING LIST
IX. COMMITMENT TO DATA SECURITY
X. REPRESENTATIONS AND WARRANTIES
You accept and agree to abide by all of the Terms contained herein and you represent and warrant that you are not, and will not be, under any disability, or other restriction, which prevents your ability to enter into, perform in accordance thereof, and comply with all of the Terms. You acknowledge that you are at least 18 years of age. You agree that your use of the Site, including, without limitation, uploading or posting any Submission to the Site (or associated social media channels and platforms), will not violate any law or regulation, including, without limitation, copyright, trademark, patent, trade secret, publicity, and privacy laws, or interfere with any third party’s use and enjoyment of the Site. You warrant and represent that you have all necessary licenses, rights, consents, and permissions to Submissions. It is strictly prohibited to post or transmit, directly or indirectly, any unlawful, threatening, defamatory, obscene, or infringing material or impersonate any persons while using the Site. You represent, warrant, and agree that you will not, via the Site or otherwise: cause damage to the Site or impair the availability or accessibility of the Site in any way which is fraudulent, unlawful, illegal, or harmful, including, without limitation, modifying, adapting, bypassing, or hacking the Site to change, de-crypt, interrupt, destroy, or limit the functionality of Company’s, or its users’, computer software, hardware or telecommunications equipment; upload, post, host, transmit any code or materials of a destructive nature, including, without limitation, worms, or viruses, via any method of communication, including, without limitation, via Submissions, unsolicited emails, “spam” messages; contact any other visitor or user of the Site for any illicit purpose or who has requested not to be contacted; access the Site through unpermitted automated means; or attempt to gain unauthorized access to Company’s servers or computer system or engage in any activity that interferes with the performance of, or impairs the functionality of, the Site or any goods or services provided by Company or the Company Parties. You acknowledge and agree that some Content is subject to restrictions imposed by the Company Parties and these Content providers may require additional terms and conditions for the use, access, or viewing, of such content, such as YouTube and Instagram content embedded on the Site. You agree that your use of the Site shall be subject to all of these additional terms and conditions. You agree to not remove any copyright, trademark, or other legal notices that accompany any Content accessible via the Site. In certain cases, available Content may become unavailable due to restrictions from such third parties. Company will have no liability to you for any such unavailability. You represent and warrant that you will not upload payment information to your Account and/or use any debit card, credit card, or other form of payment on the Site, unless you have all necessary authorizations to do so. Company may, from time to time, use various technologies to verify your compliance with the Terms and you consent to Company using any monitoring or other technology associated with monitoring your access to the Site. You represent and warrant that you will only use the Products for their intended purpose and that you are purchasing the Products for your own personal, non-commercial use and not for redistribution, resale, or transfer of any kind except as expressly authorized by Company. You acknowledge that you may not use the Site in any other way not expressly stated herein or approved by Company in writing. Company explicitly reserves all rights not specifically contemplated herein that relate to the Site.
This Site and all Products offered and sold by Company are made available “as is” and “with all faults.” Use of the Site and all Products is entirely at your own risk and you should use your best judgment and exercise caution while using the Site and Products. ALL INFORMATION PROVIDED HEREUNDER IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE ADVICE, DIAGNOSIS, OR TREATMENT OF ANY HEALTH-RELATED CONDITION. NOTHING ON THE SITE SHOULD BE CONSTRUED AS PROFESSIONAL MEDICAL ADVICE OR TREATMENT OR THE PRACTICE OF ANY MEDICAL OR HEALTH PROVIDER. YOU CANNOT USE THE SITE AS A SUBSTITUTE FOR THE DIAGNOSIS, TREATMENT OR PRESCRIPTION OF A MEDICAL CONDITION AND YOU SHOULD ALWAYS PROMPTLY SEEK THE ADVICE OF A QUALIFIED HEALTH PROVIDER REGARDING ANY HEALTH OR MEDICAL CONDITION. RELIANCE ON ANY INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK. In accordance with the foregoing, Company, to the fullest extent permissible by applicable law, disclaims all warranties, expressed or implied, written or oral, arising from a course of dealing, performance, usage of trade, or otherwise in connection with the Site and Products, and your use thereof, including, without limitation, warranties of merchantability, fitness for a particular purpose, and non-infringement and Company explicitly does not warrant that the Site, Products, or any Content will meet your requirements. Company does not monitor all Content found on the Site or the content of any websites or mobile applications linked to the Site for offensive, indecent, objectionable, obscene, or unlawful Content and is not liable to you for any offensive, indecent, objectionable, obscene, or unlawful Content. You acknowledge that through Company providing you with access to the Site, Company is not undertaking any obligation or liability relating to the Content. Company makes no guarantee that your use of the Site, and all other features or functionalities associated with the Site, or delivery or display of the Site, will be uninterrupted, interference free, or error free, or be free from any viruses, worms, or other security intrusions, and that Company is not liable to you for any such defect. You understand that the Site may contain inaccuracies, omissions, and delayed information and that Company is not liable to you for any such defect. Without limiting the foregoing, occasionally there may be information on the Site that contains errors, inaccuracies or omissions that may relate to Product descriptions, pricing, promotions, offers, and Product shipping charges and schedules. Company reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information within the Site is inaccurate at any time without prior notice (including after you have submitted an order). Company undertakes no obligation to update, amend or clarify information in the Site, including without limitation, pricing information, except as required by law, and Company reserves the right in Company’s sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof). No specified update or refresh date applied in the Site should be taken to indicate that all information in the Site has been modified or updated. Company shall under no circumstance whatsoever have any liability to you for any personal injury, property loss or damage, of any nature whatsoever, resulting from your access to and use of inaccurate information provided on the Site or any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein. Regardless, Company strives to provide accurate descriptions of all materials available on the Site and every attempt is made to provide you with complete, error-free, and accurate information. If you believe there are any inaccuracies or discrepancies, please contact Company at firstname.lastname@example.org.
XII. LIMITATION OF LIABILITY
To the fullest extent permitted by applicable law, Company, and the Company Parties shall not be liable to you or any third party for any direct, indirect, special, incidental, consequential, exemplary, extra-contractual, or punitive damages of any kind whatsoever, including, without limitation, lost revenues or lost profits, loss of data, loss of business or anticipated savings, loss of use, loss of goodwill, or other damages which are in any way related to your use of the Site and Products, regardless of legal theory (including, without limitation, contract, tort, personal injury, property damage, negligence, warranty, or strict liability), whether or not Company or the Company Parties have been advised of the possibility, foreseeability, or probability of such damages, and even if the remedies otherwise available fail of their essential purposes. Without limiting the foregoing, this limitation of liability explicitly includes, to the fullest extent permitted by applicable law, any damages you may incur from using the Products or watching any video found on the Site. In no event will Company or the Company Parties be liable for damages of any kind, under any legal theory, arising out of or in connection with any claim for losses or injuries resulting from events beyond its control including, but not limited to, the following: acts of God, acts of public authorities acting with actual or apparent authority, criminal acts of third parties, the application of security or health-related regulations imposed by any government, work stoppages or other labor disputes, war, military actions or police actions, acts of terrorism, civil commotions, or disruptions in air or ground transportation networks, such as weather phenomena and natural disasters. Without limitation and to the fullest extent permitted by applicable law, you waive any claims or damages that you may or actually have against Company and the Company Parties and all of their respective officers, directors, members, shareholders, employees, representatives, personnel, successors, and licensees, in connection with the Site and Products, including, without limitation, any personal injury, death, property damage, access to the Site, any claims in connection with use of the Site (such as defects, errors, omissions, or mistakes) and Products, and any other breach of the Terms by you, of any nature whatsoever, regardless of legal theory, including, without limitation, contract, tort, personal injury, property damage, negligence, warranty, or strict liability. UNLESS OTHERWISE PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE AND PRODUCTS OR IF YOU FEEL COMPANY HAS BREACHED THESE TERMS IS TO STOP USING THE SITE AND PRODUCTS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE ALLOCATION OF RISK BETWEEN COMPANY AND YOU IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, COMPANY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND/OR YOUR USE OF THE SITE AND PRODUCTS WILL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00). Additionally, Company will not be liable in the event others acting with or without your permission use your Account and/or payment method to make purchases on the Site. Notwithstanding, you may report any unauthorized use to Company, and Company will take reasonable steps to assist you in preventing future unauthorized uses of your credit card or other payment method on the Site. Notwithstanding the foregoing, some jurisdictions may prohibit a disclaimer of warranties, conditions, and/or limitations of liability in some cases and you may have other rights that vary from the above (such as if you are a New Jersey resident). Limitations and exclusions in such states that have restrictions shall be limited to the fullest extent permitted by law.
You agree to indemnify Company and the Company Parties and all of their respective officers, directors, members, shareholders, employees, representatives, personnel, successors, and licensees (collectively, the “Indemnities”) against all claims, actions, suits, and other proceedings arising out of or incurred in connection with these Terms, including, without limitation: (i) your use of the Site, Products, Company’s services, or otherwise, in any direct or indirect capacity, including, without limitation, for any unintended uses of the Products, all of the foregoing to the fullest extent permitted by applicable law; and (ii) pursuant to your breach or alleged breach of the Terms hereunder (“Claims”). To the fullest extent permitted by applicable law, you shall indemnify and hold the Indemnities harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and legal costs) arising out of or incurred in connection with such Claims. This indemnification obligation shall survive these Terms and your use of the Site and Products. Company reserves the right to take over the exclusive defense of Claims for which Company is entitled to indemnification, and in such an event, you shall provide prompt and reasonable cooperation to Company.
In addition to these Terms, sweepstakes, contests, or other promotions (each, a “Contest”) made available by Company through the Site (including through Company’s social media channels) may have specific rules that are different from these Terms. By participating in a Contest, you agree to and will become subject to any specific Contest terms and conditions. Company urges you to review the rules before you participate in a Contest. In the event of any conflict between any the terms and conditions of a Contest and these Terms, the rules pertaining to such Contest will take priority over these Terms.
XV. USER DISPUTES
You agree that you are solely responsible for your interactions with any other user in connection with the Site and/or the Products and Company will have no liability or responsibility with respect thereto. Company reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Site and/or the Products.
XVI. ENTIRE AGREEMENT
These Terms represent the entire understanding between Company and you, superseding all prior agreements (including previous versions of the Terms), whether oral or written, with respect to your use of the Site, Products, and all other subject matter contained herein. The Terms shall be binding upon and inure to the benefit of Company and your respective assigns, successors, heirs, and legal representatives. The Terms cannot be modified or amended, except as expressly provided for herein. The Terms are personal to you and are not assignable, transferable, or sublicensable by you except with Company’s prior written consent. Company may freely assign the Terms. If any part of the Terms is deemed by a court of law to be void, voidable, illegal, or unenforceable, the remainder of the Terms will remain in full effect as if such void, voidable, illegal, or unenforceable part had not existed. The waiver by either party hereto of a breach of any of the provisions of the Terms by the other party hereto shall not be construed as a waiver by the non-breaching party of any subsequent breach by the breaching party. Headings are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of the Terms. All provisions of these Terms, which by their nature should survive termination or expiration, shall survive termination or expiration. You are responsible for all costs associated with accessing or using the Site and you are responsible for any system software and/or hardware compatibility requirements for use of the Site.
XVII. CHOICE OF LAW
By accessing, viewing, or using the Site and Products you consent and agree that: (i) the Terms will be exclusively governed by the laws of New York applicable to contracts entered into and performed within New York and notwithstanding any conflict of law principles; (ii) you accept service of process by personal delivery or mail; and (iii) you irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available. Any dispute related to the Terms shall be exclusively resolved in the courts located in New York or Kings County, New York. Any alleged claim or cause of action you may have with respect to your use of the Site must be commenced within one (1) year after the alleged claim or cause of action arises. All of Company’s rights and remedies are cumulative and shall in no way affect any remedy available to Company under equity or law. You agree that any violation of the breach of the Terms by you will result in irreparable harm to Company, that monetary damages may be inadequate, and you hereby agree Company shall be entitled to seek injunctive relief, without the need to post any bond or proving any damages. Notwithstanding anything to the contrary contained herein, you agree that you may only bring a claim against Company in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding and you may not seek any equitable or injunctive relief, and you may only seek damages against Company in the form of your actual monetary damages.
All legal notices pursuant to the Terms shall be in writing and shall be given by email to Company at: email@example.com. By using the Site, you agree that any notice due under the Terms that Company sends you electronically will satisfy any legal communication or notification requirement.
XIX. INTELLECTUAL PROPERTY POLICY
Company respects the intellectual property rights of others and desires to offer a Site that contains no material that violates the intellectual property rights of others. Company has instituted procedures for receiving written notification of claimed intellectual property infringements. If you believe in good faith that your intellectual property rights have been infringed through use on the Site, you may notify Company’s intellectual property designated agent by email at firstname.lastname@example.org. with “August - Notice of Infringement” in the subject line, or otherwise provide a written communication to Company at 102 Moore Street, Princeton NJ 08540, which contains:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright (or other intellectual property) interest;
2. A description of the copyrighted work (or other intellectual property interest) that you claim has been infringed;
3. A description specifying the location on the Site of the material that you claim is infringing;
4. Your email address and your mailing address and/or telephone number;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright (or other intellectual property) owner, its agent, or the law; and
6. A statement by you made under penalty of perjury, that the information in your notice is accurate and that you are the copyright (or other intellectual property) owner or authorized to act on the copyright (or other intellectual property) owner’s behalf. For clarity, only intellectual property notices should go to Company’s intellectual property designated agent at email@example.com. Any other general communications should be directed to Company at firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this section, your notice may be invalid under applicable intellectual property laws. Questions, comments and requests in relation to these Terms are welcome and should be addressed to email@example.com.