NOTICE OF ARBITRATION PROVISIONS: Your use of our Site or other Service is subject to binding individual arbitration of any disputes which may arise, as provided in Paragraph 18 below. Please read the arbitration provisions carefully and do not use our Site or other Service if you are unwilling to arbitrate any disputes you may have with us as provided below.
1. Acceptance of Terms.
If you do not agree to these Terms, please do not use the Site or other Service.
DailyCandy may, subject to Paragraph 18(j) below, change these Terms from time to time on a prospective basis, and modify, add or discontinue any aspect, content or feature of the Site or other Service, at its sole discretion. Your continued use or accessing of the Site or other Service following the posting of any changes to the Terms constitutes your acceptance of such changes. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these Terms would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid these Terms being deemed illusory or unenforceable.
Unauthorized access, distribution, reproduction, copying, retransmission, publication, sale, exploitation (commercial or otherwise), or any other form of transfer of any portion of the Site or other Service, including but not limited to all content, services, digital products, tools or products, is hereby expressly prohibited.
2. Permitted Use.
Our Site and Service are for your personal and non-commercial use. They contain material that is derived in whole or in part from material supplied and owned by DailyCandy and other sources. Such material is protected by copyright, trademark and other applicable laws. Unless otherwise agreed to in writing by DailyCandy, you agree that you will not use the Site or other Service, or duplicate, download, publish, modify or otherwise distribute or use any material in the Site or other Service for any purpose, except for your personal, non-commercial use. You also agree that you will not link to any page on the Site other than the home page (for example, "deep linking"), without DailyCandy's prior written consent. Use of the Site or other Service or any materials or content on the Site or other Service for any commercial or other unauthorized purpose is prohibited.
3. Registration, Accounts and Passwords.
If you establish a personal account with us, you agree to (1) provide true and accurate data about yourself on our account registration form, and to update and keep such data current. You will receive a password and account upon completing the registration form. You are solely responsible for maintaining the confidentiality of your password and account, and you are solely responsible for all use of your password or account, whether authorized by you or not. You agree to (a) immediately notify DailyCandy of any unauthorized use of your password or account or any other breach of security and (b) ensure that you exit from your account each time you use the Site or other Service. Access and use of password-protected and/or secure areas of the Site or other Service is restricted to users who have been given a valid password by DailyCandy. We may terminate your membership and access to our Site and Service if we learn that you have provided us with false or misleading registration data.
5. User Conduct.
It is a condition of your use of the Site or other Service that you do not:
- Interfere with any other user from using and enjoying the Site or Service;
- Collect information about other users or third parties via the Site or Service or use any such information for the purpose of transmitting or facilitating transmission of unauthorized or unsolicited advertising, junk or bulk e-mail, chain letters, or any other form of unauthorized solicitation;
- Engage in the systematic retrieval of data or other content from the Site or Service to create or compile, directly or indirectly, a collection, compilation, database or directory, without DailyCandy's prior written consent;
- Solicit other users to join, become members of, or contribute money to any online service or other organization, advocate or attempt to get users to join in illegal schemes or plan or participate in scams involving other users;
- Attempt to gain unauthorized access to other computer systems or networks connected to the Site or Service; or
- Take actions for the purpose of manipulating or distorting, or that may undermine the integrity and accuracy of, any ratings or reviews of any service or product that may be presented by the Site or Service.
Additionally, you agree that you will not use the Site or other Service to upload, post, or otherwise distribute or facilitate distribution of any material that:
- Is libelous, defamatory or slanderous;
- Is sexually suggestive or contains explicit sexual content (including nudity);
- Does or may denigrate or offend any individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- Does or may threaten, abuse, harass, or invade the privacy of any third party;
- Is fraudulent or infringes the rights of any third party, including, without limitation, patent, trademark, trade secret, copyright, right of publicity, or other proprietary rights;
- Constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spam"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- Contains a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment, or to damage or obtain unauthorized access to any data or other information of any third party;
- Encourages conduct that would constitute a criminal offense or give rise to civil liability;
- Impersonates any person or entity, including any employee or representative of DailyCandy; or
- Violates any applicable law or these Terms.
7. Grant of Limited License.
If you post any content to the Site or other Service, you hereby grant DailyCandy and its affiliates and licensees a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, publicly display, publicly perform, modify, sublicense, and distribute such content, and incorporate it in other works, in whole or in part, in any manner and any media now known or hereafter developed. You represent and warrant that you own such content or otherwise have sufficient rights in the content to grant to DailyCandy the foregoing license without infringing or violating the rights of any third party.
DailyCandy respects the intellectual property of others, and we ask our users to do the same. The Digital Millennium Copyright Act of 1998 (the “Act”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. DailyCandy, pursuant to the Act, reserves the right, but not the obligation, to terminate your license to use the Site or other Service if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. Therefore, in compliance with the Act, if you believe that any such third party materials infringe your intellectual property rights, please send a notice to the agent identified below to request a review of the alleged infringement. The notice must include the following information (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site or other Service are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow DailyCandy to locate the material on the Site or other Service; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send DailyCandy a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. Notices and counter-notices with respect to the Site or other Service should be sent to: DailyCandy, LLC, DMCA Takedown Notice Process, Attn: General Counsel, 12200 W. Olympic Boulevard, Suite 400, Los Angeles, CA 90064. DailyCandy suggests that you consult your legal advisor before filing a notice or counter-notice. Also, please be aware that there can be penalties for false claims under the DMCA.
9. Proprietary Rights.
DailyCandy owns all right, title and interest in and to the Site or other Service and all materials and content contained in the Site or other Service, including, without limitation, all content, site design, logos, button icons, images, digital downloads, data compilations, text, and graphics are protected by copyright, trademark and other intellectual property laws. Any unauthorized use of such materials or content is strictly prohibited.
Permission is granted to individual consumers to electronically copy and to print hard copy portions of the Site or other Service solely for personal use. Any other use of materials on the Site or other Service, including reproduction for purposes other than those noted above, modification, distribution, or republication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of DailyCandy is strictly prohibited. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our Web pages or the content contained therein without prior written permission of an authorized officer of DailyCandy.
DailyCandy® is a proprietary service mark of DailyCandy, LLC. DailyCandy's service marks/trademarks may not be used in connection with any product or service that is not provided or authorized by DailyCandy, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits DailyCandy.
10. Children’s Online Privacy Protection Act Notification.
DailyCandy is not designed or intended for use by children under 13. If you are under 18, you should use DailyCandy only with involvement of a parent or guardian.
11. Disclaimer of Warranties.
While DailyCandy uses reasonable efforts to include up to date information on the Site and other Service, DailyCandy makes no warranties or representations as to its accuracy, timeliness, reliability, completeness or otherwise.
DAILYCANDY PROVIDES THE SITE AND OTHER SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. DAILYCANDY, ITS AFFILIATES, AGENTS AND LICENSORS (COLLECTIVELY, THE “DAILYCANDY PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DAILYCANDY DOES NOT WARRANT THAT THE SITE OR OTHER SERVICE WILL (1) BE UNINTERRUPTED; (2) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (3) MEET YOUR REQUIREMENTS; OR (4) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. YOUR USE OF THE SITE AND SERVICE IS SOLELY AT YOUR RISK.
12. Exclusion of Damages.
NONE OF THE DAILYCANDY PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SITE OR OTHER SERVICE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF DAILYCANDY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF THE DAILYCANDY PARTIES SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE OR OTHER SERVICE. WITHOUT LIMITING THE FOREGOING, DAILYCANDY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH PARAGRAPH 3 (REGISTRATION, ACCOUNTS AND PASSWORDS) OR (2) CONTENT POSTED TO THE SITE OR OTHER SERVICE BY YOU OR ANY THIRD PARTY.
13. Limitation of Liability.
IN NO EVENT WILL THE DAILYCANDY PARTIES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SITE AND SERVICE OR THESE TERMS EXCEED THE AMOUNT (IF ANY) PAID BY YOU TO DAILYCANDY IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY.
14. Applicability of Disclaimers, Exclusions and Limits.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, DAILYCANDY'S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU.
15. Third Party Web Sites.
THE THIRD-PARTY WEB SITES LINKED TO OR FROM THE SITE OR OTHER SERVICE ARE NOT CONTROLLED BY DAILYCANDY. ACCORDINGLY, DAILYCANDY MAKES NO WARRANTIES OR CONDITIONS REGARDING SUCH THIRD-PARTY WEB SITES AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF OR RELIANCE ON SUCH WEB SITES. YOUR USE OF THIRD-PARTY WEB SITES IS AT YOUR OWN RISK. THE INCLUSION ON THE SITE OR OTHER SERVICE OF A LINK TO A THIRD-PARTY WEB SITE DOES NOT IMPLY AN ENDORSEMENT BY DAILYCANDY. WHEN YOU ACCESS ANY OF THESE THIRD-PARTY SITES, YOUR RIGHTS AND OBLIGATIONS WILL BE GOVERNED BY THE AGREEMENTS AND POLICIES RELATING TO THE USE OF THOSE SITES.
You will indemnify and hold harmless the DailyCandy Parties, and at DailyCandy's option defend the DailyCandy Parties, from and against any damage, loss, cost or expense (including without limitation, legal fees and costs) incurred in connection with any third-party claim, demand, proceeding or action ("Claim") brought against any of the DailyCandy Parties arising out of your use of the Site or other Service or any alleged breach by you of any provision of these Terms, or the infringement by you, or any other subscriber or user of your account, of any intellectual property or other right of any person or entity. If you are obligated to indemnify any of the DailyCandy Parties, DailyCandy may, in its sole and absolute discretion, control the defense and disposition (including its possible settlement) of any Claim at your sole cost and expense. Without limitation of the foregoing, you will not settle, compromise or in any other manner dispose of any Claim without the written consent of DailyCandy.
In its sole and absolute discretion, with or without notice to you, DailyCandy may suspend or terminate your use of and access to the Site or other Service, terminate your account and/or remove and discard anything transmitted by you, or information stored, sent, or received via the Site or other Service without prior notice and for any reason, including, but not limited to: (i) concurrent access of the Site or Service with identical user identification, (ii) permitting another person or entity to use your user identification to access the Site or Service, (iii) any unauthorized access or use of the Site or Service, (iv) any violation of these Terms, (v) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Site or Service, or (vi) failure to use the Site or Service on a regular basis. You may terminate your account for any reason by emailing DailyCandy at http://www.dailycandy.com/account/editions. DailyCandy shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension of the Service. Termination, suspension, or cancellation of the Service or your access rights shall not affect any right or relief to which DailyCandy may be entitled, at law or in equity, and all rights granted to you will automatically terminate and immediately revert to DailyCandy.
18. Binding Arbitration of All Disputes.
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Site or other Service, (ii) any purchases or other transactions or relationships with DailyCandy, or (iii) any data or information you may provide to DailyCandy or that DailyCandy may gather in connection with such use, interaction or transaction (collectively, “DailyCandy Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Site or other Service, or engaging in any other DailyCandy Transactions or Relationships with us, you agree to binding arbitration as provided below.
- the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and DailyCandy (the “Arbitrator”);
- the Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions in Paragraph 18 hereof, including but not limited to any claim that all or any part of these Terms is void or voidable;
- the Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and DailyCandy; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
- the Arbitrator (i) shall apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
- the Arbitration can resolve only your and/or DailyCandy’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
- the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
- in the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, DailyCandy will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
- in the event you recover an Award greater than DailyCandy’s last written settlement offer, the Arbitrator shall also have the right to include in the Award DailyCandy’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but DailyCandy shall in all events bear its own attorneys’ fees; and
- with the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor DailyCandy shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
- DailyCandy may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after DailyCandy has given notice of such modifications and only on a prospective basis for claims arising from DailyCandy Transactions and Relationships occurring after the effective date of such notification.
- Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against DailyCandy in your local small claims court within the United States, if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.