M. DE PHOCAS TERMS AND CONDITIONS
ACCEPTANCE OF TERMS
M. De Phocas, LLC ("M. De Phocas") provides its services to you subject to the following Terms and Conditions ("T&C"). These T&C apply to the M. De Phocas website located at www.mdephocas.com, and all associated websites linked to www.mdephocas.com by M. De Phocas, its subsidiaries and affiliates (collectively "the Website"). Please read these T&C carefully. BY USING THE WEBSITE, IN ANY WAY, INCLUDING, WITHOUT LIMITATION, TO BROWSING THIS WEBSITE, YOU AGREE TO AND ARE BOUND BY THE T&C DESCRIBED HEREIN.
AVAILABILITY AND PRICING
Despite every effort to provide the most recent, accurate, and reliable data, there may be times when information displayed on the Website may contain incomplete data, typographical errors, inaccuracies, or outdated information (for example, when an item featured on the website is no longer available). While M. De Phocas makes every attempt to prevent these errors, they may occur occasionally. M. De Phocas makes no warranties as to the accuracy, completeness or timeliness of the information accessible via the Website. Any errors are unintentional and we apologize if erroneous information is reflected in product pricing or availability, or if such erroneous information affects your individual order in any way. M. De Phocas reserves the right to correct any and all errors when they do occur, and does not honor inaccurate or erroneous prices. If a product's listed price is lower than its actual price, M. De Phocas will, at its own discretion, either contact you for instructions before shipping the product or cancel the order and notify you of such cancellation. If the order has already been shipped before the error(s) is discovered, you agree to either return the product or pay the difference between the actual and charged prices. M. De Phocas's prices are also subject to change without notice. M. De Phocas does not negotiate prices on any of their products, and all our prices are final, but for the above-mentioned exceptions.
On occasion, due to the volume of orders received on the Website, an item may go out of stock before we are able to post a notification on the Website. In the event this occurs, M. De Phocas will contact you directly to discuss possible alternative options. We apologize for any inconvenience that this may cause. If you have any questions, please do not hesitate to contact us at email@example.com or 646.861.3378.
In order for M. De Phocas to keep prices reasonable, we do not allow for comparison purchasing. Comparison purchasing is when a customer purchases several items with the intent of keeping only the one they like best and returning the remainder. Unfortunately, this causes unwarranted restocking and inventory overhead, which and can be costly to the company. To confirm the quality and obtain further specifics about any jewelry item you wish to purchase on the Website, please contact us at firstname.lastname@example.org or 646.861.3378, and someone will be happy to assist you with your purchase decisions.
PRODUCTS ON THE WEBSITE
M. De Phocas has gone to great lengths to ensure their online catalog is as accurate and comprehensive as possible. In doing so, from time to time some products on the Website may appear larger or smaller than their actual size in the photographs. M. De Phocas has made every effort to accurately display the products featured on the Website. However, the colors used and the capabilities of your computer monitor may affect the colors visible on your screen, and since every computer monitor is set differently, color and size may differ slightly on your screen.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
MODIFICATIONS TO SERVICE OR CONTENT
M. De Phocas reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the service or content of the Website (or any part thereof) with or without notice. You agree that M. De Phocas shall not be liable to you or to any third party for any modification, suspension or discontinuance of service or content on the Website.
M. De Phocas cannot warrant that the Website will operate uninterrupted, error-free, without defects, or that the Website or its server will be free of viruses or other harmful elements. As a visitor of the Website, your access is undertaken at your own risk. As such, M. De Phocas is not liable for any damages related to your access of or inability to access the Website, even if M. De Phocas knew or should have known of the potential for such damages.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertisers. You agree that M. De Phocas shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Website. If you decided to participate in or rely on any promotions or information offered through advertisers found through the Website, you acknowledge that you are doing so at your own risk.
THIRD PARTY CONTENT
Links found on the Website to third party content are for the sole purpose of providing information and additional sources to those interested in this information. M. De Phocas does not endorse any third party content and makes no guarantees or promises as to its accuracy or completeness of those websites. Additionally, M. De Phocas does not monitor or have any control over any third party content or third party websites. Furthermore, they do not represent or warrant the accuracy of any information contained therein, and undertakes no responsibility to update or review any third party content linked to through the Website. You agree that M. De Phocas shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party content found on the Website. If you decided to participate in or rely on any promotions or information offered through any third party content found through the Website, you acknowledge that you are doing so at your own risk.
The Website and all content and other materials, including, without limitation, the M. De Phocas logo, and all designs, text, graphics, pictures, selection, coordination, "look and feel", information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the "the Website Materials") are the proprietary property of M. De Phocas or its licensors and are protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights. Without M. De Phocas's prior written consent, you agree not to display or use in any manner these marks.
PERMISSIBLE USE OF THE WEBSITE
M. De Phocas has granted you a personal, limited, non-sublicensable license to access and use the Website and electronically copy, (except where prohibited without a license) and print to hard copy portions of the Website materials for your non-commercial, informational, and personal use only.
The above mentioned license is subject to these T&C and does not include: (i) use of any automated means to access, monitor or interact with any portion of the Website, including through data mining, robots, spiders, scraping, or similar data gathering or extraction methods; (ii) the distribution, public performance or public display of any of the Website Materials; (iii) transforming or otherwise making any derivative uses of the Website and/or the Website Materials, or any portion thereof; (iv) downloading (other than the page caching) of any portion of the Website, the Website Materials or any content contained therein, except as expressly permitted on the Website; (v) any resale or commercial use of the Website or the Website Materials therein; (vi) the collection and use of any product listings, jewelry, pictures or descriptions for commercial purposes; (vii) cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners, advertisement, or anything else which minimizes, covers, or frames or inhibits the full display of the Website; (viii) use the Website in any way which interferes with the normal operation of the Website; or (ix) any use of the Website or the Website Materials other than for its sole intended purpose.
Any use of the Website or the Website Materials other than as specifically authorized herein, without the prior written permission of M. De Phocas, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these T&C shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. This license is revocable at any time at M. De Phocas's sole discretion.
Notwithstanding these T&C, M. De Phocas reserves the right, without notice and in its sole discretion, to terminate your license to use the Website, and to block or prevent future your access to and use of the Website.
DIGITAL MILLENNIUM COPYRIGHT ACT
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, M. De Phocas reserves the right to terminate and bar any user from the Website, in appropriate circumstances and at their sole discretion. Specifically, any visitor(s) or account holder(s) of the Website who are believed to be; (i) violating any anti-piracy measures built into any of the Website Materials; (ii) cracking of copyright protected devices; or (iii) infringing on any of M. De Phocas's intellectual property rights. M. De Phocas may also, at its sole discretion, diminish access to the Website and/or terminate the accounts of any user(s) who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
DISCLAIMER OF WARRANTIES
YOU AGREE THAT YOUR USE OF THE WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, M. DE PHOCAS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. M. DE PHOCAS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY M. DE PHOCAS, THE WEBSITE, THE CONTENT CONTAINED THEREIN AND THE PRODUCTS AND SERVICES PROVIDED ON OR IN CONNECTION THEREWITH ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. M. DE PHOCAS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT, AND MATERIALS ON THE WEBSITE. M. DE PHOCAS DOES NOT REPRESENT OR WARRANT THAT MATERIALS ON THE WEBSITE OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. M. DE PHOCAS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE M. DE PHOCAS WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND M. DE PHOCAS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATION OF LIABILITY
IN NO EVENT SHALL M. DE PHOCAS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THE WEBSITE IS CONTROLLED AND OFFERED BY M. DE PHOCAS FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. M. DE PHOCAS MAKES NO REPRESENTATIONS THAT THE WEBSITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE WEBSITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
You agree to defend, indemnify and hold harmless M. De Phocas, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorneys' fees) arising from: (i) your use of and access to the Website and/or its services; (ii) your violation of any term of these T&C; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your uses of the Website caused damage to a third party. This defense and indemnification obligation will survive these T&C and your use of the Website.
Please report any violations of the T&C to email@example.com.
Entire Agreement: The T&C constitutes the entire agreement between you and M. De Phocas, and governs your use of the Website, superseding any prior agreements between you and M. De Phocas with respect to the use of the Website.
Choice of Law and Forum: The Website is hosted in New York State in the United States of America and is subject to New York State and U.S. federal law. The Website shall be deemed a passive website that does not give rise to personal jurisdiction over M. De Phocas, either specific or general, in jurisdictions other than New York. These T&C shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. Any claim or dispute between you and M. De Phocas that arises in whole or in part from the Website shall be decided exclusively by a court of competent jurisdiction located in New York County, New York.
If you are accessing the Website from other jurisdictions, please be advised that you are transferring your personal information to us in New York State, and by using the Website; you consent to that transfer and to abide by the laws of New York State and applicable U.S. federal law concerning your use of the website and your agreements with us. Please be advised, in addition, that your use of the Website is subject to New York State and U.S. federal law. Any persons accessing the Website from any jurisdiction with laws or regulations governing the use of the Internet, including personal data collection, use and disclosure different from those of New York State and U.S. federal law may only use the Website in a manner lawful in their jurisdiction. If your use of the Website would be unlawful in your jurisdiction, please do not use the Website.
Waiver and Severability of Terms: The failure of M. De Phocas to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision. If any provision of the T&C is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the T&C remain in full force and effect.
No Right of Survivorship and Non-Transferability: You agree that any accounts you may have on through the Website is non-transferable and any rights to your account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Website must commence within one (1) year after such claim or cause of action arose. Otherwise, such cause of actions is permanently and forever barred.
The section titles in the T&C are for convenience only and have no legal or contractual effect.
Last updated August 24, 2011.