THESE TERMS OF USE constitute an agreement ("Agreement") made between NYDJ Apparel, LLC, a limited liability corporation organized under the laws of the State of New York ("NYDJ") and any person accessing NYDJ’s site ("You") with respect to your use of NYDJ’s site including, without limitation, the Content, as defined in Section 2(c) below, (collectively, the "Site"). You and NYDJ intend to set forth in this Agreement the terms governing your access and use of the Site. You agree to abide by all of the terms contained in this Agreement as a condition of your continuing to access, view or use the Site. The parties intend that this Agreement shall govern the ownership, protection and use of the Site. This Site and any of its services are provided subject to compliance with these terms and conditions of use. NYDJ and You are collectively referred to as the parties.
AGREEMENT
BY ACCESSING, VIEWING OR USING ANY PART OF THE SITE, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU DO NOT HAVE NYDJ’S PERMISSION TO ACCESS, VIEW, USE OR LINK TO ANY PART OF THE SITE. ANY SUCH UNAUTHORIZED USE AND/OR BREACH OF THE TERMS OF THIS AGREEMENT VIOLATES NYDJ’s RIGHTS IN THE SITE, EXCEEDS YOUR AUTHORIZATION TO ACCESS AND USE THE SITE AND ITS COMPUTING ASSETS AND IS STRICTLY PROHIBITED.
1. Site Description
a. Description. The Site is proprietary to NYDJ and is protected by intellectual property laws and international intellectual property treaties. Your access to the Site is licensed and not made available unconditionally to You. Subject to the terms and limitations set forth in this Agreement, NYDJ agrees to provide You with a personal, non-transferable and non-exclusive right to access, view, use and link to the Site.
b. Accessibility. You agree that from time to time the Site may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which NYDJ may undertake from time to time; or (iii) causes beyond the control of NYDJ, whether or not foreseeable.
c. Equipment. You shall be solely responsible for providing, maintaining and ensuring compatibility with the Site, all hardware, software, electrical and other physical requirements for your use of the Site, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, programs and services required to access and use the Site.
d. Linking. You may link to the Site only by means of a hypertext link (a Hypertext Reference or "HREF"), the most fundamental hyperlink, achieved through use of a piece of text which is differentiated from regular text onscreen by a special color or formatting, such as underlining. HREF simply directs the reader from information displayed on your Site to information displayed on this Site subject to the limitations set forth in Section 4 below. Operationally, when a user clicks on a hypertext link, its browser terminates its link to your Site and establishes a new connection with this Site. Such HREF’s display content from only one Site at a time, and your Site does not copy the Content from this Site. The hypertext links permitted under this Section may not incorporate textual or graphical materials from this Site and may not be used to engage in any illegal or unfair trade practices, such as passing off, misappropriation of goods and services, false advertising and trade libel and/or infringement of any intellectual property rights of NYDJ or any third party. NYDJ reserves the right, in its sole discretion, to revoke any right granted under this Agreement to You to link to or use the Site.
2. Limitations
a. Security. You shall be solely responsible for the security, confidentiality, integrity, and use of all messages and/or the content that You transmit to the Site. Any passwords used for this Site are for individual use only. You will be responsible for the security of your password (if any). NYDJ will be entitled to monitor your password and, at its discretion, require you to change it. If you use a password that NYDJ considers insecure, NYDJ will be entitled to require the password to be changed and/or terminate your account.
You are prohibited from using any services or facilities provided in connection with this Site to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If you become involved in any violation of system security, NYDJ reserves the right to release your details to system administrators at other Sites in order to assist them in resolving security incidents. NYDJ reserves the right to investigate suspected violations of these Terms of Use.
b. Privacy. NYDJ takes the issue of privacy on the Internet very seriously. Our Privacy Policy immediately follows this Terms of Use and Conditions. NYDJ will not collect, monitor, edit, or disclose any personal information about You, including your use of the Site, without your prior consent or other than as stated in our Privacy Policy. You have no expectation of privacy with respect to the Internet generally or this Site in particular except as stated in our Privacy Policy.
c. Nature of Site Content. NYDJ makes information and other materials available on this Site as a service to the public and to our customers and other friends for informational purposes only (collectively, the "Content"). The Content on this Site is not intended to create any relationship between NYDJ and You or anyone else. Any such relationship must be expressly created between NYDJ and You by means of direct, interpersonal contact between You and NYDJ. NYDJ makes no representation, claim or guarantee whatsoever regarding any result, outcome or effect from access to or use of the Site or otherwise.
The Content is not necessarily complete and up-to-date and should not be used to replace any written reports, statements, or notices provided by NYDJ. You should use the Content in the same manner as any other information resource/medium and should not rely on the Content to the exclusion of your own judgment. Information obtained by using this Site is not exhaustive and does not cover all issues, topics, or facts that may be relevant to you. All of the information in this Site, whether historical in nature or forward-looking, speaks only as of the date the information is posted on this Site, and NYDJ does not undertake any obligation to update such information after it is posted or to remove such information from this Site if it is not, or is no longer, accurate or complete.
d. Confidentiality of Information Transmitted to NYDJ. You also should be aware that if You send messages to NYDJ (or any of its staff, employees, agents or representatives) through Internet electronic mail or through the NYDJ Site, such means are not secure, and NYDJ does not guarantee the confidentiality of such communications. NYDJ does not agree to accept and/or maintain the secrecy of any unsolicited information You send to NYDJ unless NYDJ and You have executed a written agreement in which NYDJ has expressly agreed to maintain any of Your information in confidence. No such confidential relationship is created unilaterally by your sending to NYDJ any information You consider to be confidential. However, NYDJ cannot guarantee the confidentiality of correspondence through Internet electronic mail or through the NYDJ Site.
e. Changes. NYDJ reserves the rights to change, modify, add or remove any portion of this Agreement, in whole or in part, at any time in our sole and absolute discretion. Changes in this Agreement will be posted on this Site. Your continued use of this Site after any changes are made shall be deemed your acceptance of the changes.
f. Hyperlinks. This Site may be hyperlinked to other sites which are not maintained by, or related to, ÔNYDJ. Hyperlinks to such Sites are provided as a service to users and are not sponsored by or affiliated with this Site or NYDJ. NYDJ has not reviewed any or all of such sites and is not responsible for the content of those sites. Hyperlinks are to be accessed at your own risk, and NYDJ makes no representations or warranties about the content, completeness or accuracy of these hyperlinks or the sites hyperlinked to this Site. Further, the inclusion of any hyperlink to a third-party site does not necessarily imply endorsement by NYDJ of that site.
g. Submissions. You hereby grant to NYDJ the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all content, remarks, suggestions, ideas, graphics, photos, or other information communicated to NYDJ through this Site (together, the "Submission"), and to incorporate any Submission in other works in any form, media, or technology now known or later developed. NYDJ will not be required to treat any Submission as confidential, and may use any Submission in its business (including, without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future NYDJ operations. Testimonials, as defined below, do not fall within the definition of Submission under this paragraph and are treated strictly in accordance with paragraph h, below, and, as pertinent, NYDJ’s Privacy Policy. Notwithstanding the foregoing, with respect to Testimonials, You authorize NYDJ only to release your first name, the first initial of your last name, and your city/state to attribute the Testimonial to You, along with any submitted photo, audio or video. Notwithstanding the foregoing, to the extent any Submission falls within the scope of the Privacy Policy, it shall be treated in accordance with the NYDJ’s Privacy Policy.
h. Testimonials. Notwithstanding the foregoing, NYDJ actively encourages and requests that you submit testimonials relating to your personal experience(s) with NYDJ apparel or this Site (one or more referred to herein as a "Testimonial"). You agree that NYDJ is under no obligation to use your testimonial. By submitting Testimonial(s) you hereby consent, without further consideration, to the use of the your likeness, voice, name (limited only to your first name, last name first initial, city and state) and/or any statements made in such Testimonial in the dramatization, publication, display, copying, reproduction, performance and/or distribution, throughout the world, by or on behalf of NYDJ or a third party so authorized by NYDJ of any image or photograph You submitted in a Testimonial in connection with the creation of marketing/sales print advertising, or website content including, without limitation, this Site, or an audiovisual work to be used by NYDJ or a third party authorized by NYDJ, either as a complete unit or in segments or in any derivative form, in any way NYDJ deems appropriate and for any purpose whatsoever in any medium including, without limitation, the Internet. You specifically agree that any Testimonial may be reproduced orally using a third party. You hereby waive any rights of privacy and publicity, moral or other rights you may have in any such Testimonial. This Testimonial consent supersedes and replaces any and all prior or contemporaneous agreements, understandings or arrangements, whether oral or written, heretofore made between the parties and relating to the subject matter hereof, and constitutes the entire understanding of the parties with respect to any Testimonial. This Testimonial consent may not be modified, changed, altered or amended except by an express written agreement of both parties. NYDJ reserves the right to use persons other than the person submitting the testimonial to vocalize or act out a testimonial or to create its own testimonials based on adaptations or compendiums of testimonials.
i. Disclaimer. You understand that NYDJ cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to this Site for the reconstruction of any lost data. NYDJ does not assume any responsibility or risk for your use of the Internet.
3. Copyright
You are solely responsible for any and all of your acts and omissions that occur when using the Site, and You agree not to engage in unacceptable use of the Site.
You may not post, send, submit, publish, or transmit in connection with this Site any material that:
Any violation of this Site’s Terms of Use expressly exceeds your authorization under these Terms of Use or otherwise to access and/or use this Site, its Content, and its computing assets.
5. Termination
This Agreement is effective upon your access or use of the Site and shall continue in full force until terminated. NYDJ reserves the right to monitor Content on this Site and any NYDJ services and to remove Content, disable sites, or suspend or terminate services if NYDJ, in its discretion, determines such Content or user practices are harmful, offensive, or otherwise in violation of these Terms of Use. NYDJ reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Site; (b) suspend your access to or use of all or any portion of the Site; and (c) terminate this Agreement.
6. Sweepstakes/Prizes
Ten winners per week will be randomly selected as the winner of a NYDJ Sweepstakes (the "Prize Period") in which the prize will be a pair of NYDJ jeans in a size specified by You, each having a value of no less than seventy-five dollars (the "Prize"). NYDJ doesn"t know who the winner is prior to selecting the winner in accordance with these rules. If You enter NYDJ’s Sweepstakes, your entry will have the same chance to win as every other entry. No purchase of any kind or payment is required or expected to enter and your chances of winning without a purchase are the same as the chances of someone who buys something. It would not be lawful to give any advantage to buyers in a Sweepstakes. You don"t have to buy anything to enter. Just e-mail the entry form on this Site to NYDJ. You may submit additional entries by e-mail. Each time you e-mail NYDJ (an "Entry") You will be entered once into each ongoing Sweepstakes in the then current Prize Period. Each Entry request must be e-mailed separately and must be actually received by NYDJ. NYDJ does not accept Entries from third parties or those sent in bulk. Odds of winning depend on the number of Entries received during any Prize Period. If selected as a winner, as a condition to your receiving the Prize, you must comply with all the terms of this Terms of Use and Conditions and Privacy Policy, including authorizing NYDJ to use photographs and/or quotations (of You discussing your experience with winning and/or using the Prize) for any and all NYDJ marketing and promotional purposes. You must be eighteen or older to be eligible and the Sweepstakes is open to both females and males. The Entrant named in the winning Entry will be considered the winner. The winner must be located within 30 days or selection or NYDJ may select an alternate winner. Winners will be personally notified by e-mail. By entering to win, the winners have notified NYDJ the name (first name and first initial of their last name) and partial locality (without street address) they want posted on the Site. The winners shall notify NYDJ of their shipping address, in order to receive their Prize. By entering to win, the winner approves being opted-in to all NYDJ emails with all relevant CAN-SPAM compliant laws, and will not hold NYDJ liable for any spam complaints whatsoever. Prizes will be shipped free of charge. The cost of Freight for any returns is at the winner’s expense. NYDJ will not post the winners full mailing address on the nydj.com Site. The decisions of NYDJ are final. NYDJ may discontinue offering the Sweepstakes at any time and post any such discontinuation on the Site. NYDJ may change the number of winners and the length of the Prize Period at any time. Any particular Prize Period may be ended early for promotional purposes or in NYDJ’s sole decision. NYDJ is not responsible for lost, delayed, misdirected, interrupted, garbled or mutilated email. Principals and employees of NYDJ, their Sweepstakes processors, immediate families and the judge(s) are not eligible. All federal, state and local laws apply and Sweepstakes are void where unlawful or otherwise prohibited by law. Each winner is responsible for any applicable taxes pertinent to winning each Prize. Winners are disqualified from winning in any successive Prize Periods.
7. Disclaimer of Warranties
THE SITE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SITE IS AT YOUR SOLE RISK. NYDJ DOES NOT WARRANT THAT THE SITE, ITS FUNCTIONS OR CONTENT WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NOR DOES NYDJ MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SITE. NYDJ MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, IN RELATION TO THE SITE. THE MATERIALS ON THIS SITE ARE PROVIDED AS GENERAL INFORMATION ONLY – AND ARE NOT PROMISED OR GUARANTEED TO REFLECT THE MOST CURRENT DEVELOPMENTS IN ANY FIELD. NYDJ DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE MATERIALS ARE COMPLETE, ACCURATE OR UP-TO-DATE. NOR IS NYDJ RESPONSIBLE FOR ANY THIRD PARTY CONTENT THAT MAY BE ACCESSED THROUGH THIS SITE AND REFERENCE TO THIRD PARTY INFORMATION, PRODUCTS OR SERVICES AT THIS OR ANY LINKED SITE DOES NOT CONSTITUTE AN EXPRESS OR IMPLIED WARRANTY OR ENDORSEMENT BY NYDJ.
NYDJ DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND NYDJ MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT NYDJ, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS SITE OR ITS CONTENT. NYDJ MAKES NO WARRANTIES THAT YOUR USE OF THE CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL NYDJ BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR OTHER ECONOMIC LOSS FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SITE, ANY CHANGES TO OR INACCESSIBILITY OF THE SITE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SITE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE INCLUDING PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF NYDJ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THAT ANY EXCLUSIVE REMEDY SHALL FAIL OF ITS ESSENTIAL PURPOSE OR OTHERWISE BE UNAVAILABLE. IN NO EVENT SHALL NYDJ’s TOTAL LIABILITY TO YOU FOR ANY DIRECT DAMAGES WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EXCEED THE TOTAL AGGREGATE AMOUNT OF $50.00. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE FOR YOU TO DISCONTINUE USE OF THE SITE.
9. Indemnification
You agree to indemnify, hold harmless and defend NYDJ, its directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys" fees, asserted by any person, arising out of or relating to: (a) your use of the Site, including any data or work transmitted or received by You; and (b) any unacceptable use of the Site, including, without limitation, any statement, data or content made, transmitted or republished by You which is prohibited as unacceptable in Section 4.
10. Trademarks
Trademarks, service marks, trade dress, and logos appearing in this Site, including NOT YOUR DAUGHTER’s JEANS¨, NYDJ¨, the NYDJ Iconª, LIFT TUCK TECHNOLOGY and its Designª, TUMMY TUCK¨ and the Criss-Cross Design¨, are the exclusive property of NYDJ or the party that provided the trademarks, service marks, trade dress, and logos to NYDJ. NYDJ and any party that provided trademarks, service marks, trade dress, and logos to NYDJ retain all rights with respect to any of their respective trademarks, service marks, trade dress and logos appearing in this Site and no license or permission to use or download any of this intellectual property shall be inferred or implied.
11. Reservation of Rights.
NYDJ reserves the right to monitor use of this Site to determine compliance with these Terms of Use, as well the right to remove or refuse any information for any reason. Notwithstanding these rights, you remain solely responsible for the content of your Submissions and/or Testimonials. You acknowledge and agree that neither NYDJ nor any third party that provides Content to NYDJ will assume or have any liability for any action or inaction by NYDJ or such third party with respect to any Submission and/or Testimonials.
NYDJ reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing NYDJ to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms of Use. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS NYDJ FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY NYDJ DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER NYDJ OR LAW ENFORCEMENT AUTHORITIES.
12. Digital Millennium Copyright Act
You agree not to upload or transmit any communications or content of any type that infringes or violates any rights of any party. It is our policy not to permit materials known by us to be infringing to remain on the Site. NYDJ has made every effort to secure appropriate clearances for all proprietary intellectual properties used on this Site. If you believe any material in this Site is infringing, please contact us immediately. Pursuant to the Digital Millennium Copyright Act, DMCA, we have registered an agent to receive copyright claims ("Designated Agent").
You may notify us of alleged intellectual property rights infringement by contacting our Designated Agent at :
William A. Finkelstein, Esq.
Steptoe & Johnson LLP
2121 Avenue of the Stars
Suite 2800
Los Angeles, CA 90067
wfinkelstein@steptoe.com
Direct Fax 202-734-3166
Please be aware that, in order to be effective, your notice of claim must comply with the detailed requirements set forth in the DMCA. You are encouraged to review them (see 17 U.S.C. ¤ 512(c)(3)) before sending your claim.
Upon receipt of notice of claimed infringement, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue.
Please do not send any other communications to the Designated Agent, who is appointed solely for the purposes of receiving notices of copyright claims under the DMCA.
13. Opt-out Rights
You may be contacted by NYDJ by e-mail or other forms of direct mail or telemarketing. However, you may "opt-out" of receiving such communications by sending an e-mail to NYDJ and electing "No Direct Mail" and "No Telemarketing" options. If you do not want any notices of enhanced services or offerings from NYDJ, NYDJ will remove you from the lists used by NYDJ for e-mail, direct mail or telephone solicitations.
14. Miscellaneous
a. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
c. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced if and only to the maximum extent possible and the other provisions will remain fully effective and enforceable.
d. Notice. Except as provided in Section 12 above regarding notices under the DMCA, all notices shall be in writing and shall be deemed to be delivered when sent by e-mail to either parties' last known e-mail address. You hereby consent to notice by e-mail. Notwithstanding the foregoing, you may remove your name and e-mail address from any correspondence sent by NYDJ by notifying NYDJ in writing that you are opting out of any future correspondence from NYDJ. All e-mail addresses obtained by NYDJ through this Site will be treated strictly in accordance with the NYDJ’s Privacy Policy.
e. Law. This Agreement is made in and shall be governed by the laws of the State of California without reference without reference either to its choice of law provisions or its Arbitration statute or other dispute resolution provisions, and the U.S. Arbitration Act, 9 U.S.C. ¤¤ 1 et seq.
f. Binding Arbitration. Any and all disputes between both parties arising out of or otherwise relating to this Agreement and its implementation will be settled solely and exclusively by arbitration using a single arbitrator in Los Angeles, California, United States of America, pursuant to the J.A.M.S/ENDISPUTE’s Streamlined Arbitration Rules and Procedures then in effect (the "Rules"). If the parties cannot agree on an arbitrator, one shall be selected in accordance with the Rules. The arbitrator has no authority to entertain any class action in connection with the Terms of Use. Any decision rendered shall be final and conclusive upon both parties and a judgment thereon may be enforced in any court having jurisdiction. All costs incurred in arbitrating a dispute shall be shared in proportion to the parties' respective amounts of liability. Notwithstanding the foregoing, NYDJ shall have the right to institute an action in any court or tribunal and may seek injunctive relief without necessity of posting any bond in the event you infringe NYDJ’s proprietary rights or breach your restricted use obligations or any other Term(s) of Use of this Agreement.
g. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in Los Angeles, California. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts in Los Angeles, California. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in Los Angeles, California and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court in Los Angeles, California.
h. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this Section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts of Los Angeles, California.
i. Attorney's Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
j. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
k. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
l. International Use. NYDJ makes no representation that materials available on this Site or through any NYDJ service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who access this Site or any site linked to by NYDJ from other locations are responsible for compliance with local law.
m. Survival. The terms and provisions of Sections 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, and 14 shall survive any termination or expiration of this Agreement.
n. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Site and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Site.
NYDJ’s SITE PRIVACY POLICY
(Effective October 21, 2009)
Information Collected and Stored
Browsing, reading, and downloading
When you browse, read, or download from NYDJ’s Site, NYDJ does not collect or store your e-mail address or your name or other address unless you voluntarily provide it to NYDJ. Examples of when you would provide such information to NYDJ include making Submissions, Testimonials, and sending Sweepstakes Entries to NYDJ. When you visit www.nydj.com (the "site"), NYDJ automatically gathers and stores the following information about your visit through log files and "cookies" (a string of characters that are written to a file on the user’s hard drive when the user visits a Site):
Submissions, Testimonials and E-mail Entries
When you e-mail Submissions, Testimonials and Entries to NYDJ, NYDJ collects and stores the information listed above.
Submissions
In addition, any information that you disclose to NYDJ becomes the non-exclusive property of NYDJ, including the e-mail address you provide, subject to the Terms of Use and this Privacy Policy. If you send an email, idea, essay and/or other Submission to NYDJ through the Site, NYDJ collects and stores the information listed above. In addition, NYDJ may print that Submission, or an excerpt from it, on the Site, or otherwise publish it, together with your first name and first letter of your last name, and partial location (city, state, and/or country) if you have provided such information. This Privacy Policy does not protect you when you send Submissions by e-mail to the Site which contain business information, ideas, concepts or inventions. If you want to keep business information, ideas, concepts or inventions privacy or proprietary, do not send them in an e-mail as a Submission to NYDJ. NYDJ tries to answer every e-mail in a timely manner, but are not always able to do so.
Testimonials
If you send a Testimonial to NYDJ through the Site, NYDJ collects and stores the information listed above. In addition, NYDJ may print that Testimonial, or an excerpt from it, on the Site, or otherwise publish it, together only with your first name, the first letter of your last name, and location (city, state, and/or country).
E-mail Entries
If you send an e-mail Entry to NYDJ through the Site, NYDJ collects and stores the information listed above. In addition, NYDJ may disclose or otherwise publish your first name and first letter of your last name and partial location (city, state and/or country) and the kind of jeans won but will not reveal the size. Personally identifiable information collected by NYDJ from any Entry is not provided to outside parties except to NYDJ service vendors such as NYDJ's Sweepstakes processors.
Use of Information
Use of collected information stated above is limited to the following: responding to user e-mails, listing location of user when publishing user e-mails or other Submissions, editorial purposes such as contacting users for an online survey, other internal NYDJ purposes, and other purposes specified at the time the information is gathered.
NYDJ may provide to third parties non-personal information about you that does not allow you to be identified or contacted and that is combined with the non-personal information of other users. For example, NYDJ may inform third parties regarding the number of users of the Site and the activities they conduct while on the Site. We may or may not charge third parties for this information. NYDJ may not impose on such third parties any limitation regarding the use of such information, except that NYDJ does require third parties to whom we disclose such non-personal information to agree that they will not attempt to make this information personally identifiable by combining it with other databases or otherwise.
Personally identifiable Information (PII)
Personal information is not gathered by the Site. However, you may submit personal information to NYDJ through Submissions, Testimonials, and Entries as discussed in the Terms of Use.
PII is information that can be used to identify or contact you. When you visit the Site, NYDJ only collects PII you provide to us in Submissions, Testimonials and Entries. NYDJ may collect non-personal information from you and about your use of the Site, e-mails, special promotions and newsletters that we may send to you as described above.
You may use the Site without submitting any PII. In that case, the only information NYDJ may collect will be non-personal information collected through your use of the Site, e-mails, special promotions, or newsletters sent to you.
NYDJ may use the PII that you provide to respond to questions from you and/or inform you of significant changes to this Privacy Policy. NYDJ may also use this information to send you e-mails or newsletters with content that we think may be of interest to you. You can always opt-out of receiving such e-mails or unsubscribe to newsletters at any time.
Except as set forth in this Policy or as specifically agreed to by you, NYDJ will not disclose any PII it gathers from you on the Site. NYDJ may release PII to third parties: (1) to comply with valid legal requirements such as law, regulation, search warrant, subpoena or court order, or (2) in special cases, such as a physical threat to NYDJ, you or others. In the event that we are legally compelled to disclose your PII to a third party, we will notify you unless doing so would violate the law or court order. Notwithstanding the foregoing, NYDJ may share information you provide in generic terms with other professionals to discuss conditions and to obtain further recommendations regarding approaches to problems. Such sharing never identifies the subject and anonymity is preserved. NYDJ exercises all reasonable internal controls to maintain the confidentiality of PII and although NYDJ makes every reasonable effort to protect your PII from loss, misuse, or alteration by third parties, you should be aware that there is always some risk in transmitting information over the Internet or that thieves could find a way to breach NYDJ’s security systems employed to protect your PII.
You may always contact NYDJ to (1) delete your PII from our systems, (2) update the PII you have previously submitted, and (3) change your preferences with respect to contact information or other activities, by e-mailing NYDJ at contact@nydj.com. Such changes will not have any effect on other information that the Site maintains. If you have a complaint or a problem you may e-mail us at contact@nydj.com which will be then dealt with internally for a response or resolution. We attempt to answer every e-mail in a timely manner but are not always able to do so. If you do not receive adequate resolution of a Privacy related problem, you may write to NYDJ at the following address:
NYDJ Apparel, LLC Attention: Privacy Policy
5401 South Soto Street
Vernon, CA 90058
You should know that it may not be technologically possible to remove each and every record of the PII you have provided to NYDJ from our servers because of the need to back-up our systems to protect information from inadvertent loss. Therefore, a copy of your PII may exist in a non-erasable form that will be difficult or impossible to locate. Nevertheless, NYDJ represents that upon receiving your request, all PII stored in the databases we actively use for research and daily business activities, and other readily searchable media, will be deleted.
NYDJ reserves the right to change this Policy in its sole discretion at any time and in the future to make significant changes to its privacy policy affecting the use of PII we collect. If we do so, we will notify you by e-mail of any significant changes concerning our use of your PII and obtain your "opt-in" consent to any significant new uses of your PII if it was obtained from you prior to a significant change in this Policy. We further reserve the right to make non-significant changes to our Privacy Policy that generally will not affect our use of your PII. In such cases, we will not notify you of these non-significant changes and invite you to check this posted Privacy Policy for any such non-significant changes.
Children
This Site is not directed to nor is it intended for use by or does NYDJ authorize any access to or other use of its computing facilities by children less than 13 years of age. If you are under 13 years of age, do not send any information about yourself, including your name, address or e-mail address. If we discover that we have collected any personally-identifying information from a child under the age of 13, we will remove that information from our database as soon as possible.
Visitors between the ages of 13 and 18 must obtain permission from their parents or guardians before using the Site, or otherwise sending any personally-identifying information.
Links to other Sites
The Site may contain links to other sites. NYDJ is not responsible for the privacy practices or the disclosure of any information or materials gathered on these other sites.
Acceptance of Privacy Policy Terms
Use of the Site constitutes consent to any Policy then in effect. Please make sure that you read NYDJ's Terms of Use to understand additional terms and conditions which apply to the use of the Site. If you do not agree to the terms of this Privacy Policy or any revised Policy, please exit the Site immediately.
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