THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Decorilla provides an online platform that helps connect customers who wish to purchase online interior design services and interior design advice (“Designer Recommendations“) by submitting information about their design projects including photos, and answers to questions (“Customers”) and designers who wish to provide such services (“Designers”), including, for example, responding to projects with Design Concept Preview Proposals (“Design Proposals”), and providing online interior design services including 3D room rendering, shopping list with links, paint color palettes, moodboards, tips and implementation guide, floor plan, and to-do list (“E-Decor Package”). “User” means any user of the Site or Service, and may be a Designer or a Customer. To the extent you are a Customer, the provisions in this Agreement regarding Customers apply to you. To the extent you are a Designer, the provisions in this Agreement regarding Designers apply to you. To the extent you are a User, the provisions in this Agreement regarding Users apply to you. “Winning Designer” means a Designer whose Design Proposal is selected by Customer in an E-Decor Project. “Buying Customer” means the applicable Customer. “Sold E-Decor Package” means the applicable winning Design Proposal and contents of the E-Décor Package and online décor services. “Sale” means the applicable sale. “IPR” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.
1.2. E-decor Project.
Customer may create an E-decor Project (“E-decor Project”) by creating a Decor Brief (“Decor Brief”), paying the Customer Payment, and following the other instructions on the Site. There are currently two types of E-decor Projects: (1) the default Pre-Paid Project and (2) the Private Project. Designers invited by Decorilla (in Decorilla’ sole discretion) to enter an E-decor Project may submit Design Proposals (“Design Proposals”) in the format specified by Decorilla by following the instructions on the Site. Design Proposals must comply with the Decorilla’s Quality Standards and Decor Brief. For Private Projects, Customer must select one winning Design Proposal or request more Design Proposals by a certain time specified by Decorilla. If no proposal is selected in a Private Project, Decorilla will retain the Customer Payment, Decorilla will retain 50% of the Customer Payment and distribute the remaining 50% to the Designer who participated in the Private Project, and Customer will have no right to a refund or to use the Design Proposals. For Pre-Paid Projects, Customer must select one winning Design Proposal or ask for more Design Proposals by the time specified by Decorilla. If no proposal is selected in a Pre-Paid Project, Decorilla will retain the Customer Payment and the Customer will have no right to a refund. Customer has sixty (60) days after choosing their Winning Designer to work with that designer, unless otherwise specified by the designer or Decorilla before the project commencement. Customer may not: (a) Run a E-decor Project if Customer is tendering the creation of the same design through a service other than the Site; (b) allow or request Designers to submit Design Proposals or online design services to Customer via any means other than via the Site; and (c) colluded in relation to the awarding of a winner in a E-decor Project or awarding a separate account held by Customer as the successful Designer in a E-decor Project. Customers and Designers must deal on an arm’s length basis. Customer may not contact a Designer that Customer meets though the Site separately for any purpose which results in Customer avoiding paying though Decorilla for future projects with that Designer. Designer may not sell furniture or services to Customer other than though the Site. Refunds will be paid to Buying Customer using the same payment methods Buying Customer used to remit the Customer Payment to Decorilla or via any other method specified by Decorilla from time to time. If a refund is paid to Buying Customer or a credit card charge back occurs, then: (a) Selling Designer must reimburse Decorilla for the applicable Designer Fee; and (b) Buying Customer will initially receive the amount of the Customer Payment, less the Designer Fee and will receive the Designer Fee only once the Designer Fee is reimbursed by Selling Designer to Decorilla. Decorilla may refund Buying Customer if the order placed (or request made) by the Customer is found to be fraudulent; the Customer placed a duplicate order (or request) in error. Furniture and decor refunds follow the refund policy of each specific vendor that each item was purchased from and cannot be adjusted by Decorilla. Decorilla cannot guarantee color accuracy as colors and textures may look different on each Customer’s and Designer’s monitors. Customers are responsible for verifying item sizes before ordering shopping list items as sizes may appear different in renderings. Decorilla is not responsible for verifying any Designer Recommendations. Customers are solely responsible for checking and verifying all Designer Recommendations before ordering shopping list items and/or implementing the Designer Recommendations.
1.3. Representations and Warranties.
Designer hereby represents and warrants to Decorilla that the execution and delivery of this Agreement by the designer, all media provided by Designer for promotional use by Decorilla, and the performance of the Designer’s obligations under this Agreement will not conflict with or breach any agreement, order, will not contain any IPR licensed from a third party, or decree to which the designer is a part of or which he is bound. Designer will indemnify and hold Decorilla and Buying Customer harmless, including costs and attorneys’ fees, from any third party claim arising out of a breach by the Design of the foregoing warranty or any third party claim that the Designer infringes/misappropriates.
If Designer maintains a website advertising interior design services or products, if requested by Decorilla, such online material must incorporate a Decorilla badge and link to Decorilla’s website in a form determined by Decorilla (including, but not limited to, blog posts related to Decorilla design projects). All publicly shared photos of Decorilla client designs shall include a watermark of Decorilla’s name and logo and a link to Decorilla’s website. If any public media references or displays work is undertaken for Decorilla (including, but not limited to, press releases and blog posts), such media shall include a link and reference to Decorilla, to the extent Designer has sufficient control over such media.
2. Payment Terms.
2.1. Payment and Delivery.
Upon a Sale, Buying Customer will pay the Customer Payment and Decorilla will pay Selling Designer the Designer Fee (subject to first receiving payment from the Buying Customer), and (b) Selling Designer will upload the Sold E-Decor Package and Decorilla will deliver the Sold E-Decor Package to the Buying Customer, in a format specified by Decorilla. The “Customer Payment” means (i) the price selected by Customer when Customer created an E-decor Project as set forth at https://www.decorilla.com/online-decorating/costs-fees-faq; (ii) the customized prize amount which included the incentive amount entered by the Buying Customer. The “Designer Fee” means the Customer Payment, minus the fees and charges imposed by Decorilla and minus any applicable Taxes. Buying Customer will not pay Selling Designer any amount in excess of the Customer Payment for the Sold E-Decor Package or to pay Selling Designer separately outside the Site in relation to the supply of an E-Decor Package, or of an online design service.
2.2. Decorilla Credits.
a. The Designer Fee will be paid to Selling Designer in US Dollars after and if the buying customer approves the E-Decor Package. The balance of any Decorilla Credits held by you may be reduced at any time by Decorilla for charge-backs or refunds, or for any amount owing by you to Decorilla, to compensate Decorilla for any loss that it determines (in its sole discretion) it has suffered as a result of any breach of this Agreement by you. The only rights that you have to receive payment of any amounts held by Decorilla are as set out in this Agreement.
2.3. General Payment Terms.
All payment will be in US dollars. Each User is solely responsible for satisfying all income tax, payroll tax, payroll withholding, sales and use tax, governmental reporting and other legal requirements under applicable law, including without limitation those applicable to the purchase and sale of services provided by designers, from and by independent contractors.
You agree that you are responsible for the collection and/or payment of all Taxes which you may be liable for in any jurisdiction arising from your sale or purchase of any Sold E-Decor Packages via the Site or your provision of design services that are the subject of an invoice issued through the Site. Decorilla is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement. Any amount that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
You acknowledge that Decorilla will not issue 1099 tax forms and further agree that if you are a U.S. buyer purchasing services from U.S. designers, you are solely responsible to issue 1099 tax forms to those designers.
3. IMPORTANT DISCLAIMERS AND RELEASE.
WE MAKE NO WARRANTIES REGARDING THE E-DECOR PROJECT, DESIGN PROPOSALS, E-DÉCOR PACKAGE, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY DESIGNERS, CUSTOMERS, OR OTHER USERS AND EACH OF THE FOREGOING ARE PROVIDED BY US “AS IS”. SELLING DESIGNERS SELL AND BUYING CUSTOMERS BUY SOLD E-DECOR PACKAGES AT THEIR OWN RISK. YOU SHOULD MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OTHER USER. YOUR INTERACTIONS WITH OTHER USERS ARE SOLELY BETWEEN YOU AND SUCH USER AND DECORILLA WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER, WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED. NOTWITHSTANDING THE FOREGOING, DECORILLA WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICES DESCRIBED IN THIS AGREEMENT. THE FOREGOING DISCLAIMER SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS IN SECTIONS 12 AND 13.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions with, or act or omission of, other Users, including Customers and Designers and Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
In order to use the Service, you must register for an account with Decorilla (“Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by emailing customer support at the contact number below. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Decorilla of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Decorilla cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Designers may not have more than one Account.
5. User Content.
5.1. Your User Content.
“User Content” means any and all information and content that a User submits to, or uses with, the Site or Services. User Content includes Decor Briefs, E-Decor Projects, Design Proposals, E-Décor Packages, Designer Portfolio Items provided by Designers to display in their accounts (“Portfolio Items”), and reviews and/or testimonials (“Reviews”). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Decorilla. Because you alone are responsible for your User Content (and not Decorilla), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Decorilla is not obligated to remove any E-Decor Projects, Decor Briefs, Designer Portfolio Items, Design Proposals, E-Decor Packages or Reviews from the Site unless required by applicable Law. Decorilla is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
5.2. User Content.
You hereby grant, and you represent and warrant that you grant, to Decorilla an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, for the purposes of including your User Content in the Site and Services; provided that Decorilla will only use your Decor Brief, Décor Project, Design Proposals, Designer Portfolio Items, and E-Decor Packages to run applicable projects and promotions. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
6. Acceptable Use Policy.
The following sets forth Decorilla’s “Acceptable Use Policy”:
You agree that you will only use the personal information of other Customers or Designers made available to you only for the purposes of interacting with them in relation to the Services. You must not use their personal information for any other purpose, including for marketing purposes. You represent and warrant that you will comply with applicable privacy laws and data protection laws in relation to the storage, use and transfer of personal information.
6.2. User Content.
You agree not to use the Site or Services with any User Content or to provide any products or services that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) is in violation of any Laws, or obligations or restrictions imposed by any third party.
6.3. Use Restrictions.
You agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services; (h) impersonate any person or entity or falsify or misrepresent yourself or your affiliation with any person or entity; or (i) display, mirror, or frame the Site.
6.4. Other Guidelines/Policies.
Please see the following:
Designer Code of Conduct (as emailed to each approved designer)
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
7. Confidentiality and non-compete
The term “Confidential Information” will mean any and all confidential and/or proprietary knowledge, data or information of the Company, its affiliates, parents and subsidiaries. By way of illustration but not limitation, “Confidential Information” includes (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (collectively, “Inventions”); (b) information regarding research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, pricing and billing policies, quoting procedures, methods of obtaining business, forecasts, future plans and potential strategies, financial projections and business strategies, operational plans, financing and capital-raising plans, activities and agreements, internal services and operational manuals, methods of conducting Company business, suppliers and supplier information, and purchasing; (c) information regarding Customers and potential Customers, including names and their representatives, their needs or desires with respect to the types of products or services offered by the Company, proposals, bids, contracts and their contents and parties, the type and quantity of products and services provided or sought to be provided to Customers and potential Customers, and other non-public information relating to Customers and potential Customers; (d) information regarding any of the Company’s business partners and their services, including their names and their representatives, proposals, bids, contracts and their contents and parties, the type and quantity of products and services received by the Company, and other non-public information relating to business partners; (e) information regarding contractors, consultants, personnel, employee lists, compensation, and employee skills; and (f) any non-public information which a competitor of the Company could use to the competitive disadvantage of the Company. Notwithstanding the foregoing, it is understood that, at all such times, Consultant is free to use information which is generally known in the trade or industry, which is not gained as result of a breach of this Agreement, and Consultant’s own, skill, knowledge, know-how and experience to whatever extent and in whichever way Consultant wishes.
Designer will hold in strict confidence and will not, either during the term of this Agreement or after the termination of the account, disclose, directly or indirectly, to any third party, person, firm, corporation or other entity, irrespective of whether such person or entity is a competitor of the Company or is engaged in a business similar to that of the Company, any trade secrets or other proprietary or Confidential Information of the Company obtained by the Designer from or through the services to be rendered under this Agreement. The Designer hereby acknowledges and agrees that all proprietary information referred to in this Section will be deemed trade secrets of the Company and of its subsidiaries, and that the Designer will take such steps, undertake such actions and refrain from taking such other actions, as mandated by the provisions of this Agreement and by the provisions of the Uniform Trade Secret Act. The Designer further acknowledges that certain of the Company’s products may consist of copyrighted material, and the Designer will exercise his best efforts to prevent the use of such copyrighted material by any person or entity which has not prior.
Subject to the terms of this Agreement, Decorilla grants you a non-transferable, non-exclusive, license to use the Site and Services for your internal business purposes (excluding Design Proposals).
8.2. Copyright and IPR
You also agree that our Designers may use their design ideas, including but not limited to their Design Proposals and E-Decor Packages in more than one place. Customers do not own the Intellectual Property Rights to E-Decor Packages and Design Proposals produced by our designers, but are instead purchasing their services.
8.3. Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, Customer, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build or promote a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Decorilla reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Decorilla will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof. You acknowledge and agree that Decorilla will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
If you provide Decorilla any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Decorilla all rights in the Feedback and agree that Decorilla shall have the right to use such Feedback and related information in any manner it deems appropriate. Decorilla will treat any Feedback you provide to Decorilla as non-confidential and non-proprietary. You agree that you will not submit to Decorilla any information or ideas that you consider to be confidential or proprietary
Each User owns its own User Content. Excluding your User Content, you acknowledge that all the IPR in the Site and Services are owned by Decorilla or Decorilla’ licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such IPR. Decorilla and its suppliers reserve all rights not granted in this Agreement.
You agree to indemnify and hold Decorilla (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site or Services, (ii) your User Content (including your E-decor Project, Design Proposal, Décor Brief, E-Décor Packages, and Reviews), (iii) your interaction with any other User, or (iv) your violation of this Agreement or any applicable laws. Decorilla reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Decorilla. Decorilla will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. Third Party Sites & Ads.
The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Decorilla and Decorilla is not responsible for any Third Party Sites & Ads. Decorilla provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
11. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases; however we reserve the right to continue to use your User Content. Decorilla will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Even after this Agreement is terminated, the all applicable provisions of this Agreement will remain in effect.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
13. Limitation on Liability.
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU HAVE PAID DECORILLA IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
14.2. Governing Law.
This Agreement shall be governed by, and construed under, the laws of the United States and State of New York.
a. Dispute Resolution.
i. Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and Decorilla arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Decorilla Site and Service.
ii. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND DECORILLA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND DECORILLA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
iii. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Decorilla must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in New York, NY. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New York, New York . Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in New York, New York. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the New York, New York without giving effect to any law that would result in the application of the law of another jurisdiction.
14.3. Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Decorilla is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Decorilla’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
14.4. Copyright/Trademark Information.
Copyright © 2015, Decorilla. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
14.5. Contact Information.