Modifications. We reserve the right to change any of the terms and conditions in this Agreement and in any policies, guidelines or instructions governing the Site or Services at any time and in our sole discretion. Any changes will be effective upon posting on the Site and we will use reasonable measures to ensure that changes are prominently posted in a manner reasonably designed to afford notice to users of the Site. You are responsible to periodically check for the most current terms that apply to your transactions on the Site. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING THE POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO THE CHANGES, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.
Eligibility. Use of the Site and Services is limited to parties that lawfully can enter into and form contracts under applicable law. For example, Benji Frank.com does not sell products for purchase by children. We sell children's products for purchase by adults. If you are under 18, you may use the Site only with the involvement of a parent or guardian. We do not offer services to or target persons under the age of 13. In compliance with the Children’s Online Privacy Protection Act and other laws concerning the protection of minors and children, we will purge any information we receive from people we believe to be children under 13 from our database and cancel the corresponding accounts.
You also represent and warrant that if you are a business, you are duly organized, validly existing and in good standing under the laws of the country in which your business is registered and that you have the authority to enter into this Agreement and perform your obligations hereunder.
Benji Frank’s Reservation of Rights. Benji Frank retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services. We reserve the right to re-design and alter the Site and the Services from time to time in order to improve the quality of your experience at the Site. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations, stop and/or cancel any transactions. As a buyer we will refund to you amounts you paid for an order that we stop or cancel.
Your Account. To access the Services offered by Benji Frank you must create an account on our Site associated with a valid e-mail address. Unless expressly authorized by Benji Frank you may only create one account per email address. To create an account and register, you must provide your real name, address, phone number and e-mail address, select a password, and provide other information required by the application form. Valid credit card information will be needed when you conduct a purchase on our Site. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). Benji Frank and its affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized party may be using your account or if any of your account information is lost or stolen.
Password Security. Your password may be used only to access the Site, use the Services, electronically sign your transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site. If your password is compromised, you must change your password.
The Benji Frank Payment Service. In order to purchase items on the Site you must use the Benji Frank Payment Service (the "Payment Service"). You may authorize a payment transaction with any major credit card accepted by Benji Frank. The Payment Service helps facilitate your transactions with Benji Frank. Use of the Payment Service is available to individuals and businesses who meet the terms of eligibility and whose applications are acceptable to Benji Frank. The Payment Service is generally available seven (7) days per week, twenty-four (24) hours per day, except for scheduled downtime due to system maintenance.
Returns and Refunds; Risk of Loss. For any products purchased Benji Frank will provide customer return and refund policies that will be displayed on the Site and under which any returns and refunds will be processed by us. All such policies and procedures, as modified by us from time to time, are part of this Agreement. Any products you purchase from us are bought CFR your location. This means that we pay the cost to bring the goods to you but the risk of loss or damage to the goods in transit transfers to you when we place the goods in the hands of the shipper.
- Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name or use an invalid or unauthorized credit card. You may not impersonate any participant or use another participant's password(s). Fraudulent conduct may be reported to law enforcement, and Benji Frank will cooperate to ensure that violators are prosecuted to the fullest extent of the law. You may not post unlawful, harmful, or obscene content or content that infringes on trademarks or copyrights or content that is defamatory about Benji Frank or its users.
- Investigation. Benji Frank has the right, but not the obligation, to monitor any activity and content associated with this Site and investigate as we deem appropriate. Benji Frank also may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site. Benji Frank reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise deemed objectionable.
- Disclosure of Information. Benji Frank also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, Benji Frank may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
You will not directly or indirectly disclose or use any information or data acquired from Benji Frank or its affiliates as a result of this Agreement, the transactions contemplated hereby or the parties' performance hereunder (collectively, "Benji Frank Transaction Information") except that you may disclose this information as necessary for you to perform your obligations under this Agreement, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information.
Disclaimer. THE SITE AND ITS CONTENT ARE PROVIDED ON AN "AS IS" BASIS. BENJI FRANK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING THE SITE OR ITS CONTENT INCLUDING WITHOUT LIMITATION:
- THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
- THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;
- THAT THE INFORMATION, CONTENT, AND MATERIALS INCLUDED ON THE SITE WILL BE AS REPRESENTED OR AVAILABLE FOR SALE AT THE TIME OF FIXED PRICE SALE;
- ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
- ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BENJI FRANK. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BENJI FRANK DISCLAIMS ANY AND ALL SUCH WARRANTIES.
Indemnity/Limitation of Liability.
- Indemnity and Defense. You will defend, indemnify and hold harmless Benji Frank and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) that arise out of or relate to: (i) your use of the Site; (ii) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (iii) any content you provide including but not limited to any actual or alleged infringement of any intellectual property or proprietary rights of any third party.
- Limitation of Liability. BENJI FRANK WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE OR THE SERVICES.
Applicable Law. By visiting the Site you agree that the laws of the State of Texas, USA govern this Agreement without giving effect to principles of conflicts of laws. Subject to the provision of this Agreement titled “Disputes” any action arising under this Agreement shall be brought only in state or federal courts in Harris County Texas, which shall have exclusive jurisdiction and you and Benji Frank consent to the exclusive jurisdiction of such courts.
Disputes. If a complaint or dispute arises you and Benji Frank will first make good faith and reasonable efforts to utilize Benji Frank’s internal dispute resolution mechanism or other informal mechanisms in order to resolve the dispute. If the complaint remains unresolved, you and Benji Frank will utilize an online alternative dispute resolution (“ADR”) service provider-- a cost-effective solution that can bridge both geographic and cultural barriers. You and Benji Frank consent to ADR as set forth in this provision as the exclusive means of resolving any dispute in the event that resolution by informal methods is unsuccessful. A party shall initiate any ADR proceeding through an established online alternative dispute resolution provider mutually agreed upon by the parties. In the event that you and Benji Frank do not agree on a mutually acceptable online ADR provider, each party shall select an ADR provider and those providers shall select an ADR provider to mediate the dispute. This selection will be binding on you and Benji Frank. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted solely by telephone, online and/or based on written submissions; (ii) the arbitration shall not involve personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The ADR provider will:
- give reasonable notice to the parties that their dispute will be heard by the forum;
- provide a clear description of its procedures and costs;
- apply only the laws of the State of Texas, USA in its evaluation and decision;
- provide each party a reasonable opportunity to be heard through the presentation of oral testimony by telephone, online and/or by written argument and documentary evidence and the offering of written argument and documentary evidence in explanation or rebuttal;
- provide to each of the parties a written statement of its decision and the reasons for the decision, except under circumstances justifying confidentiality.
Copyright and Trademark. All content included on the Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations and software, is the property of Benji Frank or its content suppliers and is protected by United States and international copyright laws. The compilation of all content on this Site is the exclusive property of Benji Frank and is protected by U.S. and international copyright laws. All software used on this site is the property of Benji Frank or its software suppliers and is protected by United States and international copyright laws. All of the trademarks, service marks, brand and trade names appearing on the Site including without limitation “Benji Frank”, “One Pair One Vision” and the Benji Frank spectacles logo, are the proprietary intellectual property of Benji Frank or the owners of such marks or names and you may not use, modify, remove or otherwise infringe any of such proprietary intellectual property. If you are a copyright owner and believe that any content on the Site infringes your copyrights you may inform us by submitting a notice to us in writing pursuant to the Digital Millennium Copyright Act (Pub. L. No. 105-304, 112 Stat. 2860) at True Vision LLC, 10949 S Sam Houston Pkwy W Suite B, Houston, Texas 77031 or to email@example.com.
Your Grant. By entering into this Agreement you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to Benji Frank and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence (other than the Site) through which the Site and/or products or services available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that we will not alter any of your trademarks (i.e., trademarks of yours that you provide to us in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your trademarks (provided you are unable to do so using standard functionality made available to you via the Site or Services); provided further, however, that nothing in this Agreement will prevent or impair our right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the content you submit to Benji Frank and its affiliates, and that the use of such materials by Benji Frank and its affiliates will not infringe upon or violate the rights of any third party.
- No Agency; Third-Party Beneficiary. Benji Frank is not your agent, fiduciary, trustee, or representative. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Benji Frank and you.
- Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severed from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
- No Waiver. We will not be considered to have waived any of our rights or remedies described in this Agreement unless the waiver is in writing and signed by us. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Our failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Benji Frank's right to subsequently enforce such provision or any other provisions of this Agreement.
© True Vision LLC 2012. All rights reserved