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TERMS OF WEBSITE USE AND ACCEPTABLE USE POLICY
1 Important Notice
This Terms of Website Use and Acceptable Use Policy ('Website Terms'), together with our Privacy Notice and Cookies Policy, applies to your use of the Penhaligon’s website namely www.penhaligons.com ('our site'), whether as a guest or as a registered user. Use of our site includes accessing, browsing, or registering to use our site.
THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER IN SECTION 17. THIS PROVISION AFFECTS YOUR RIGHTS TO RESOLVE DISPUTES WITH PENHALIGON’S AND YOU SHOULD REVIEW IT CAREFULLY
Please read these Website Terms, as well as our Privacy Notice and Cookies Policy, carefully before you start to use our site. By accessing or using our site, you confirm that you have read, understood and accept these Website Terms and our Privacy Notice and Cookies Policy in their entirety each time you access our site and that you agree to comply with them. If you do not agree to these Website Terms, or our Privacy Notice and Cookies Policy, please refrain from using our site.
We recommend that you print a copy of this page for future reference.
2 Other applicable terms
These Website Terms:
· include our Acceptable Use Policy below which sets out the permitted uses and prohibited uses of our site. When using our site, you must comply with the Acceptable Use Policy; and
· refer to our Privacy Notice and Cookies Policy, which sets out (i) the terms on which we process any personal data we collect from you, or that you provide to us and (ii) information about the cookies on our site. By using our site, you consent to the processing of your personal data and you warrant that all data provided by you is accurate.
If you purchase goods from our site, contracts for the supply of goods through our site or as a result of visits made by you are governed by our Terms and Conditions of Sale.
3 Information about us
www.penhaligons.com is a site operated by Penhaligon’s Inc. ('we', 'us' or 'our'). Our main business address is 400 Madison Avenue, Suite 10B, New York, NY 10017.
4 Accessing our site
Our site is made available free of charge. Access to our site is permitted on a temporary basis, and we reserve the right to suspend, withdraw, discontinue or amend the service we provide on our site for business or operational purposes without notice. Access may be terminated or suspended, in our discretion, in relation to specific users or to all users or customers who have registered with us.
We do not guarantee that our site, or any content on it, will always be available or be uninterrupted. To the extent permitted by law, we will not be liable to you if for any reason our site is unavailable at any time or for any period.
You are responsible for making all arrangements necessary for you to have access to our site.
You are also responsible for ensuring that all persons who access our site through your internet connection are aware of these Website Terms and other applicable terms and conditions, and that they comply with them.
5 Your account and password
If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose such information to any third party. Please keep in mind that we will treat anyone who uses your user identification code, password or other access credentials as “you.” We will provide this user with all of the rights and privileges that we provide to you, and we will hold you responsible for the activities of a person using your password.
To the extent permitted by law, we are not liable for any loss resulting from your failure to protect the confidentiality of your user name or password.
We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Website Terms.
You must notify us immediately if you suspect that someone is using your user identification code, password or other access credentials in an unauthorized or otherwise inappropriate manner.
6 Intellectual property rights and trade marks
We are the owner or the licensee of all intellectual property rights in our site, and in the material (including text, photographs, images and designs) published on it. Those works are protected by trademarks, design rights, copyright laws and treaties around the world. All such rights are reserved.
If you acquire any rights in or to our site or materials on it, you agree to transfer those rights, on a worldwide basis, to us and unconditionally and irrevocably to waive all moral and other rights you may have acquired.
You may print off one copy, and may download extracts, of any page(s) from our site for your personal use and you may draw the attention of others within your organisation to material posted on our site.
You must not modify or create derivative works from the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
Our status (and that of any identified contributors) as the authors of content on our site must always be acknowledged.
You must not use any part of the content on our site for commercial purposes without first contacting us and obtaining an express licence to do so from us or from our licensors.
If you print off, copy, download, distribute or otherwise use any part of our site in breach of these Website Terms, your right to use our site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.
Please note that "Penhaligon's" is a United Kingdom registered trade mark and a registered Community Trade Mark of Penhaligon’s Limited used with permission by Penhaligon’s Inc.
7 No reliance on information
The content on our site is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our site. We disclaim to the fullest extent permitted by law all liability and responsibility arising from any reliance placed on the content on our site by any visitor to our site, or by anyone who may be informed of any of its contents.
8 Limitation of our liability
If we fail to comply with these terms, we are responsible for any loss or damage you suffer that is a foreseeable result of our breach of these terms or our negligence. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time you accessed or used our site and accepted these terms in doing so. We do not accept liability for any loss or damage which was not foreseeable.
To the extent we may lawfully do so we exclude liability for any implied terms and conditions including those implied by statute, common law or the law of equity. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PENHALIGON’S DISCLAIMS (i) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, OR LEGALITY OF INFORMATION AVAILABLE THROUGH THE WEBSITE; AND (iii) ANY RESPONSIBILITY OR LIABILITY FOR HARM RESULTING FROM DOWNLOADING OR ACCESSING INFORMATION THROUGH THE WEBSITE. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE AND CONTENT IS AT YOUR SOLE RISK.
We only provide our site for domestic and private use. You agree not to use it for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
However, nothing in these terms shall affect our liability for death or personal injury caused by our negligence, nor our liability for fraud or fraudulent misrepresentation, nor any other liability which cannot be excluded or limited under applicable law.
Nothing in these terms affect your legal rights as a consumer. Advice about your legal rights is available from your local Citizens' Advice Bureau or Trading Standards office or from the US Federal Trade Commission.
Different limitations and exclusions of liability will apply to liability arising as a result of the supply of any goods by us to you, which will be set out in our Terms and Conditions of Sale.
9 Uploading content to our site
Whenever you make use of a feature that allows you to upload content to our site, or to make contact with other users of our site, you must comply with the content standards set out in the Acceptable Use Policy within these Website Terms.
You warrant that any such contribution complies with those standards, and you will be liable to us and indemnify us for any breach of that warranty. If you are a consumer user, this means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
Any content you upload to our site will be considered non-confidential and non-proprietary, and you grant us a non-exclusive, royalty-free, transferable licence to use, store, copy, distribute and disclose to third parties any such content for any purpose. You may request the removal of content you have uploaded to our site by contacting [email protected] and we shall endeavour to remove it as soon as practicable.
We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our site constitutes a violation of their rights (including their intellectual property rights or their right to privacy).
We will not be responsible, or liable to any third party, for the content or accuracy of any content posted by you or any other user of our site.
We have the right to remove any posting you make on our site if, in our opinion, your post does not comply with the content standards set out in our Acceptable Use Policy.
The views expressed by other users on our site do not represent our views or values.
10 US Contact For Alleged Copyright Infringement.
Penhaligon’s respects the intellectual property rights of others and requires that its users do the same. If you believe that content on the Website or other activity taking place on the Website constitutes infringement of a work protected by copyright (a "Work"), please notify our copyright agent immediately using the contact information provided herein. It is our policy to investigate any allegations of copyright infringement brought to our attention. Please provide us with the following information in your notice of a suspected copyright violation:
Identification of the work or material being infringed.
Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Your notice must be signed (physically or electronically). Our Designated Agent for notice for claims of copyright infringement is Frank Presti, Business Support Manager, Penhaligon's Inc., 400 Madison Avenue – Suite 10B, New York, NY 10017. Telephone: (212)-373-4789 Email: [email protected]
NOTE: THE ABOVE CONTACT INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING PENHALIGON'S INC. THAT COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS AND SHOULD BE DIRECTED TO OUR CUSTOMER SERVICE TEAM BY EMAIL TO: [email protected] You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid. The information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content. In the U.S., under section 512(f) of the Digital Millenium Copyright Act (“DMCA”), any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see www.copyright.gov or www.chillingeffects.org/copyright for more information about how to prepare or respond to a DMCA notice.
11 Viruses, hacking and other offences
We do not guarantee that our site will be secure or free from bugs or viruses. You are accessing our site at your own risk and, to the extent permitted by law, we will not be liable for any loss or damage suffered by you as a result of viruses or other harmful material which you access from our site.
You are responsible for configuring your information technology, computer programmes and platform in order to access our site. You should use your own virus protection software.
You must not misuse our site by knowingly introducing viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack.
By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990 and/or the U.S. Computer Fraud and Abuse Act of 1986 (as amended from time to time). We will report any such breach or potential breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately.
12 Linking to our site
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
You must not establish a link to our site on any website that is not owned by you.
Our site must not be framed on any other site, nor may you create a link to any part of our site other than the homepage. We reserve the right to withdraw linking permission without notice.
If you wish to make any use of content on our site other than that set out above, please contact [email protected].
13 Third party links and resources in our site
Where our site contains links to other sites and resources provided by third parties, these links are provided for your information only. We have not reviewed and have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
Additionally, our site may include information and materials uploaded by other users of the site, including reviews. This information and these materials have not been verified or approved by us. The views expressed by other users on our site do not represent our views or values.
If you wish to complain about information and materials uploaded by other users please contact us on [email protected].
14 Changes to these terms
We may revise these Website Terms at any time by amending this page.
These Terms were most recently updated on Tuesday 2nd January 2018.
Please check this page from time to time to take notice of any changes we made, as they are binding on you. We will not "retroactively" change these Terms, and any modifications we make shall take effect proactively. By continuing to access our site after the Terms have changed, you are agreeing that you have read, understood and agree to be bound by the updated terms.
Some of the provisions contained in these Website Terms may also be superseded by provisions or notices published elsewhere on our site. These Website Terms must be read in conjunction (i) with other agreements into which you may enter concerning the Penhaligon’s Website (if any), and (ii) with our Privacy Notice and Cookies Policy. The provisions of our Privacy Notice and Cookies Policy are incorporated herein. To the extent these Terms conflict with the terms of our Privacy Notice, the terms of our Privacy Notice will control. Similarly to the extent these Terms conflict with the terms and conditions of any specific agreement you enter with us, the terms and conditions of such specific agreement will control. For example, if you purchase goods from our site, our Terms and Conditions of Sale will control.
15 Changes to our site
We may update our site from time to time, and may change the content at any time to reflect changes to our products, our users’ needs and for other business or legal reasons.
However, please note that any of the content on our site may be out of date at any given time, and we are under no obligation to update it.
Our site and the information contained in it is provided for your use "as is". We do not guarantee that our site, or any content on it, will be free from errors or omissions.
16 If you reside in the United States, these terms shall be governed by and construed in accordance with the laws of the State of New York and controlling U.S. federal law as applicable, without regard to its conflict of law principles.
17 Mandatory and Binding Arbitration
To the maximum extent permitted by applicable law, you and Penhaligon’s agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to these terms and your purchases (if any) under the rules of the American Arbitration Association. Please visit www.adr.org for more information about arbitration.
Any arbitration between you and us, to the extent necessary, will be conducted in New York, New York, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum. The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:
• the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
• the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and
• any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your use of the Services:
• You are giving up your right to have a trial by jury;
• You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and
• You must file any claim within one (1) year after such claim arose or it is forever barred.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in New York, New York, and you and we hereby submit to the personal jurisdiction and venue of these courts.
This agreement to arbitrate will not preclude you or Penhaligon’s from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Penhaligon’s from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Penhaligon’s intellectual property rights. In the event of any litigation or arbitration arising from or related to these Terms, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation or arbitration.
18 Contact us
If you have any concerns about material which appears on our site, please email [email protected]
You may use our site for lawful purposes only. You must not use our site in any way that breaches any applicable local, national or international law or regulation or which is in any way unlawful or fraudulent, or has an unlawful or fraudulent purpose or effect.
You must not use our site:
· For the purpose of harming or attempting to harm minors in any way.
· To send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards (as set out below).
· To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
· To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
You also agree not to:
· Reproduce, duplicate, copy (including storing and downloading), print, modify, create derivative works, distribute or re-sell any part of our site except as expressly permitted in these Website Terms.
· Access without authority, interfere with, damage or disrupt:
(a) any part of our site;
(b) any equipment or network on which our site is stored;
(c) any software used in the provision of our site; or
(d) any equipment or network or software owned or used by any third party.
Interactive services We may from time to time provide interactive services on our site, including, without limitation:
· Bulletin boards; and
· Rating and Reviews pages,
Where we do provide any interactive service, we will provide clear information to you about the kind of service offered, if it is moderated and what form of moderation is used (including whether it is human or technical).
We will do our best to assess any possible risks for users (and in particular, for children) from third parties when they use any interactive service provided on our site, and we will decide in each case whether it is appropriate to use moderation of the relevant service (including what kind of moderation to use) in the light of those risks. However, we are under no obligation to oversee, monitor or moderate any interactive service we provide on our site, and we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.
The use of any of our interactive services by a minor is subject to the consent of their parent or guardian. We advise parents who permit their children to use an interactive service that it is important that they communicate with their children about their safety online, as moderation is not foolproof. Minors who are using any interactive service should be made aware of the potential risks to them.
Where we do moderate an interactive service, we will normally provide you with a means of contacting the moderator, should a concern or difficulty arise.
Content standards These content standards apply to any and all material which you contribute to our site ('contributions'), and to any interactive services associated with it.
You must comply with the spirit of the following standards. The standards apply to each part of any contribution as well as to its whole.
· Be accurate (where they state facts).
· Be genuinely held (where they state opinions).
· Comply with applicable law in England and Wales and in any country from which they are posted.
Contributions must not:
· Contain any material which is defamatory of any person.
· Contain any material which is obscene, offensive, hateful or inflammatory.
· Promote sexually explicit material.
· Promote violence.
· Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
· Infringe any copyright, database right, trade mark or any other intellectual property (whether registered or unregistered) of any other person.
· Be likely to deceive any person.
· Be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
· Promote any illegal activity.
· Be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety.
· Be likely to harass, upset, embarrass, alarm or annoy any other person.
· Be used to impersonate any person, or to misrepresent your identity or affiliation with any person.
· Give the impression that they emanate from us, if this is not the case.
· Advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
· Contain any images of another person unless such person has consented to you submitting their image on our website.
Suspension and termination We will determine, in our discretion, whether there has been a breach of this Acceptable Use Policy through your use of our site. When a breach of this Acceptable Use Policy has occurred, we may take such action as we deem appropriate.
Failure to comply with this Acceptable Use Policy constitutes a material breach of our Website Terms upon which you are permitted to use our site, and may result in our taking all or any of the following actions:
· Immediate, temporary or permanent withdrawal of your right to use our site.
· Immediate, temporary or permanent removal of any posting or material uploaded by you to our site.
· Issue of a warning to you.
· Legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
· Further legal action against you.
· Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
We exclude liability for actions taken in response to breaches of this Acceptable Use Policy. The responses described in this Acceptable Use Policy are not limited, and we may take any other action we reasonably deem appropriate.
You warrant that you will comply with the above standards, and you will be liable to us and indemnify us for any breach of that warranty. This means that you will be responsible for any loss or damage we suffer as a result of your breach of warranty.