ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND TOUCHOFMODERN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.Acceptance of Terms
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Sites or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Service after we have posted modified Terms on the Sites, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Service anymore. Because our Service is evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.Privacy
The Products and Service are available only to individuals who are at least 18 years old and capable of forming a binding contract with us. If you want to use certain features of the Service, such as purchasing our Products, you’ll have to create an account (“Account”). You can do this via our Sites or through your account with certain third- party social networking services such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It’s important that you provide us with accurate, complete and up-to- date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to- date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.Purchases
You can purchase our Products by placing orders via our Sites. TouchOfModern reserves the right, in its sole discretion, to refuse to process or to cancel your order in certain circumstances. This may happen, for example, when the Product you ordered is out of stock, there are inaccuracies or errors in Products or pricing information, or our credit and fraud avoidance department identifies problems or in other circumstances that we, in our sole discretion, deem appropriate. TouchOfModern also reserves the right, in its sole discretion, to take steps to verify your identity to process your order. We will not charge you for orders that we do not process or cancel. If we have already charged you for your order, then we will refund you the amount charged.
Fees and Payment
You will be charged immediately upon placing an order. TouchOfModern will use commercially reasonable efforts to have orders delivered within the estimated delivery time. However, sometimes items may be delayed due to factors beyond our control, and we will not be liable for any such delays. If you are making payment by credit card, you hereby authorize TouchOfModern or its third party payment processing service providers to charge your credit card for the price of the Products you have purchased.
TouchOfModern reserves the right to require payment of fees for certain features of the Service. Should you elect to subscribe to or use such features, you agree to pay all applicable fees, as described on the Sites in connection with such features. TouchOfModern reserves the right to change its price list, product and service offerings, and to institute new charges at any time. Use of the Service by you following such notification constitutes your acceptance of any new or increased charges or prices.
We attempt to provide accurate descriptions of Products on our Sites. However, there may be inaccuracies in the Product descriptions, or the colors of the Products may vary from one monitor to another. Accordingly, TouchOfModern does not warrant that the Product descriptions, colors, images or videos are accurate, complete, reliable, current or error-free. If a Product offered on our Sites is not as described, your sole remedy is to contact us in accordance with our Return Policy.
Pricing and Discount Information
We strive to provide accurate pricing information about Products. We cannot, however, insure against pricing errors. TouchOfModern reserves the right, at its sole discretion, to refuse to process or cancel any orders placed for a Product whose price was incorrectly posted on the Sites as a result of an error. If this occurs, TouchOfModern will notify you by email. In addition, TouchOfModern reserves the right, in its sole discretion, to correct any errors in the listed price on its Sites.
We display discounts on our Sites in connection with each Product. Discounts are calculated using pricing information provided to us by merchants (such as suggested retail prices from the manufacturer, supplier, or the merchant, or an estimated price based on standard industry practice).
Product Availability and Delivery
Our Sites may contain information regarding the availability of the Products. Unfortunately, TouchOfModern cannot guarantee that an item listed as “in stock” will actually ship right away, as inventory can change significantly from day-to- day. In some cases, a Product which may be in stock when a customer places the order, may be sold out by the time TouchOfModern attempts to process the order, or there may be an error in the information about the availability of the Product. Should this happen, TouchOfModern will notify you by email. If we determine that a Product you ordered is no longer available, we will cancel that item from your order and provide you a full refund towards the cancelled Product, if you have already paid for it. We will notify you about the cancelation by email.
TouchOfModern accepts returns on certain Products on a case-by- case basis. If, however, a Product is listed as final sale, we will not accept returns for such Product, unless it is defective. If a Product offered by TouchOfModern is defective , please send an email to [email protected].com within 48 hours of receiving the Product. We will either replace the defective product or issue a full refund. For more information on our Return Policy and how we handle Returns, please check our FAQs.
Risk of Loss
The risk of loss and title for such all items purchased from TouchofModern pass to you upon our delivery to the carrier.Ownership of the Sites and Service
All contents of the Service, including without limitation, the text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available on or through the Service are collectively referred to as “Content”. The Service and Content, and all associated intellectual property rights are the sole and exclusive property of TouchOfModern and/or its licensors, and may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by TouchOfModern. You acknowledge that the Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.License Rights
Rights in App Granted by TouchOfModern
Subject to your compliance with these Terms, TouchOfModern grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. TouchOfModern reserves all rights in and to the App not expressly granted to you under these Terms.
Rights in Content Granted by TouchOfModern
Subject to your compliance with these Terms, TouchOfModern grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Service and solely for your personal and non-commercial purposes.Rules and Conduct
As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms. The Service (including, without limitation, any and all Content on the Service, is provided only for your own personal, non-commercial use. You are responsible for all of your activity in connection with the Service.
You agree not to do any of the following:
- Use, display, mirror or frame the Service or any individual element within the Service, TouchOfModern’s name, any TouchOfModern trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without TouchOfModern’s express written consent;
- Access, tamper with, or use non-public areas of the Service, TouchOfModern’s computer systems, or the technical delivery systems of TouchOfModern’s providers;
- Attempt to probe, scan or test the vulnerability of any TouchOfModern system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by TouchOfModern or any of TouchOfModern’s providers or any other third party (including another user) to protect the Service or Content;
- Attempt to access or search the Service or Content or download Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by TouchOfModern or other generally available third-party web browsers;
- Use any meta tags or other hidden text or meta-data utilizing a TouchOfModern trademark, logo URL or product name without TouchOfModern’s express written consent;
- Use the Service (including our Products) or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content;
- Violate any applicable local, national or international law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
We may offer rewards and discounts to our customers from time to time which may be subject to additional terms and conditions. Please note that regardless of any offers of such rewards, TouchOfModern reserves the right to change the rewards and discounts, if any, over time without any prior notice.Feedback
We welcome feedback, comments, user experience and suggestions for improvements to our Service (“Feedback”). You can submit Feedback by emailing us at [email protected]. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.Third Party Sites
The Service may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.Termination
TouchOfModern may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Sites. The provisions relating to Purchases, Ownership of Site and Services, Export Policy and Restrictions, Feedback, Termination, Warranty Disclaimers, Limitations of Liability Dispute Resolution and General Terms will survive termination of these Terms.Warranty Disclaimer relating to the Service
THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT AND ANY FEATURES MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE PROVIDED BY TOUCHOFMODERN ON AN “AS IS” AND “AS AVAILABLE” BASIS. TOUCHOFMODERN, AND ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, TOUCHOFMODERN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE. TOUCHOFMODERN DOES NOT WARRANT THAT THE SERVICE, INFORMATION, CONTENT, OR ANY FEATURE MADE AVAILABLE TO YOU THROUGH THE SERVICE, TOUCHOFMODERN'S SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM TOUCHOFMODERN ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TOUCHOFMODERN WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY SERVICE, OR FROM ANY INFORMATION, CONTENT, OR ANY FEATURES MADE AVAILABLE TO YOU THROUGH THE SERVICE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.Warranty Disclaimer relating to the Products
THE PRODUCTS (INCLUDING ANY SOFTWARE THAT MAY BE USED IN SUCH PRODUCTS) INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE PROVIDED BY TOUCHOFMODERN ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING BY TOUCHOFMODERN. TOUCHOFMODERN, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE PRODUCTS WILL MEET YOUR EXPECTATIONS.
YOU MAY BE ELIGIBLE FOR THE MANUFACTURER’S WARRANTIES THAT APPEAR ON OR WITH THE PRODUCTS YOU BUY. EXCEPT FOR SUCH MANUFACTURER’S WARRANTIES, TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, TOUCHOFMODERN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE. TOUCHOFMODERN DOES NOT WARRANT THAT THE PRODUCTS (INCLUDING THE SOFTWARE THAT MAY BE USED IN ANY PRODUCTS) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TOUCHOFMODERN WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY PRODUCTS (INCLUDING THE SOFTWARE THAT MAY BE USED IN ANY PRODUCTS).
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.Limitation of Liability
IN NO EVENT SHALL TOUCHOFMODERN, OR ITS DIRECTORS, EMPLOYEES, AGENTS, OR PARTNERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR YOUR RELIANCE ON THE SERVICE OR PRODUCT DESCRIPTIONS, OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE GREATER OF A) AMOUNTS PAID OR PAYABLE BY YOU IN CONNECTION WITH THE SERVICE; OR B) ONE-HUNDRED U.S. DOLLARS ($100.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. FOR EXAMPLE, NEW JERSEY DOES NOT ALLOW SUCH LIMITATION, AND HENCE IF YOU ARE A RESIDENT OF NEW JERSEY, THIS LIMITATION DOES NOT APPLY TO YOU.Dispute Resolution
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and TouchOfModern agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide TouchOfModern with written notice of your desire to do so by email or regular mail at [email protected] or 1025 Sansome St, San Francisco, CA 94111 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide TouchOfModern with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide TouchOfModern with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide TouchOfModern with an Arbitration Opt-out Notice, you acknowledge and agree that you and TouchOfModern are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and TouchOfModern otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800- 778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and TouchOfModern otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and TouchOfModern submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. TouchOfModern will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, TouchOfModern will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification of Terms” section above, if TouchOfModern changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to www.TouchOfModern.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of TouchOfModern’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and TouchOfModern in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).General Terms
These Terms constitute the entire and exclusive understanding and agreement between TouchOfModern and you regarding the Service (including Products), and these Terms supersede and replace any and all prior oral or written understandings or agreements between TouchOfModern and you regarding the Service (including Products). If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without TouchOfModern’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. TouchOfModern may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by TouchOfModern under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
TouchOfModern’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of TouchOfModern. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.Copyright and Trademark Notices
Unless otherwise indicated, the Terms and all Content provided by TouchOfModern are copyright © 2012 TouchOfModern, Inc. All rights reserved.
“Touch of Modern” is a trademark of TouchOfModern. The names of any actual companies and products mentioned at the Sites may be the trademarks of their respective owners.Contact Information
If you have any questions about these Terms or the Service, please contact TouchOfModern at [email protected], or at the following address.
Designated Agent to Receive Notification of Claimed Infringement:
1025 Sansome St
San Francisco, CA 94111