Last
amended: August 7, 2008
This Terms of
Use (the "Agreement") is between you and Orchard Supply Hardware, LLC
(“Company” “we”, “us” and “our”). This Agreement sets forth the terms and
conditions upon which we make available osh.com and shop.osh.com, their
contents, products and its services to you (collectively “Website”). Your use
of the Website is expressly conditioned on your compliance with this
Agreement.
By checking the box
that states “I have read and agree” and/or by using the Website, you are
indicating that you agree with and have read the most recent version of this
Agreement and agree to be bound by this Agreement. We reserve the right to modify this Agreement at any time
without notice.
Amendments
to this statement will be effective when posted. Your continued use of this Website following the posting of
any amendment, modification or change shall constitute your acceptance thereof.
Privacy. Our use of your information is governed
at all times by our Privacy Statement, http://www.osh.com/Cultures/en-US/PrivacyPolicy
which is incorporated into this Agreement.
Account Registration,
Password and Security. Whenever you provide us information, you agree to: (a) provide
true, accurate, current and complete information and (b) maintain and promptly
update such information to keep it true, accurate, current and complete. If you
provide any information that is, or we have reasonable grounds to suspect is,
untrue, inaccurate, not current or incomplete, we may suspend or terminate your
access to the Website and refuse any and all current or future use of the
Website (or any portion thereof).
Some portions
of the Website require you to register and you may be asked to select a
password to do such things as to open an account, review a product, or submit a
customer review. Please select a password that would not be obvious to someone trying to guess your password,
and change it regularly as an added precaution. You agree to maintain the
confidentiality of your password(s) and account(s), and you agree that you are
fully responsible and accountable for all activities that occur under your
account(s). You agree to notify us immediately of any unauthorized use of your
password or an account or any other breach of security. We reserve the right to take any and all action, as we deem necessary or
reasonable, to help ensure the security of the Website and any Website account,
including without limitation terminating such account, or requesting additional
information to authorize transactions on such account. Notwithstanding the
above, we may rely on the authority of anyone accessing your account(s) or
using your password(s) and in no event and under no circumstances shall we be
held liable to you for any liabilities or damages resulting from or arising out
of (i) any action or inaction of Company under this provision, (ii) any
compromise of the confidentiality of your account(s) or password(s) and (iii)
any unauthorized access to your account(s) or use of your password(s). You may not use anyone
else's account at any time.
Return
Policy. Click this Return Policy for information
about returning products you purchase from this Website. Our Return Policy is incorporated into
this Agreement.
Risk of
loss. All items purchased from this Website
are made pursuant to a shipment contract. This means that the risk of loss and
title for such items pass to you upon our delivery to the carrier.
Typographical
Errors. In
the event that a product listed on this Website is mistakenly listed at an
incorrect price, Company reserves the right to refuse or cancel any orders
placed for the product listed at the incorrect price. Company reserves the right to refuse or cancel any such
orders whether or not the order has been confirmed and your credit card
charged. If your credit card has already been charged for the purchase and your
order is cancelled, Company shall issue a credit to your credit card account in
the amount of the incorrect price.
License. Company grants you a
limited, revocable, non-exclusive license (i) to access the Website, and (ii)
while accessing the Website, to view the materials displayed on the Website for
your personal use, and for no other purpose. You may download printed copies of any materials displayed
on any portion of the Website as may be reasonably necessary for your personal
use as a user of the Website and for no other purpose, but such copies shall
not be distributed to others. Uses
of the Website not expressly authorized herein are prohibited.
Prohibited Conduct.
You agree not to: (1) access or attempt to access any information, documents or
material that you are not authorized to access through any means not intentionally
made available through the Website; (2) disrupt or interfere with the security
of, or otherwise cause harm to, the Website, material, documents, systems
resources, accounts, passwords, servers or networks connected to or accessible
through the Website or any affiliated or linked websites; (3) access or use the
Website in any manner that could damage, disable, overburden or impair any
Company server and/or server used by Company in connection with the Website or
any network(s) connected to any Company server and/or server used by Company in
connection with the Website; (4) use any material or documents in any manner
that infringes any intellectual property rights or other rights of any party;
(5) transmit unsolicited or bulk communications to any Company account holder
or to any osh.com or e-mail addresses associated with Company; (6) post or
otherwise submit any software, programs or files that are harmful or disruptive
of another’s equipment, software or other property, including any corrupted
files, time bombs, Trojan Horses, viruses and worms; (7) disrupt, interfere or
inhibit any other user from using and enjoying the Website or other websites,
material, documents or services associated with Company; (8) violate any
applicable laws or regulations related to the access to or use of the Website, and/or any portion
thereof, and/or engage in any activity prohibited by this Agreement; (9)
prepare, compile, use download or otherwise copy any user information and/or
usage information or any portion thereof, or transmit, provide or otherwise
distribute (whether or not for a fee) such information to any third party; (10)
engage in any chain letters, contests, junk e-mail pyramid schemes, spamming,
surveys or any other duplicative or unsolicited messages (commercial or
otherwise); (11) use any robot, spider, or other such programmatic or automatic
device, including but not limited to, automated dial-in or inquiry devices, to
obtain information from the Website or otherwise monitor or copy any portion of
the Website and/or (13) use any Company domain name as a pseudonymous return
email address.
Use Policies. Company may offer opportunities to
participate in forums such as message boards, or product reviews (collectively
“Online Community”). Company asks that you respect our Online Community and participating individuals. Your conduct should be guided by common
sense and basic etiquette. Any opinions, advice, statements, or other information that constitutes part of the
content expressed or made available by third parties on the Online Community
are those of the respective authors or producers and not of Company, its
shareholders, directors, officers, or employees. We may review and delete
any content, in whole or in part, that in the sole judgment of Company violates
this Agreement or which might in Company’s sole discretion be offensive,
illegal, or that might violate the rights of, or harm any third parties, but
Company is under no obligation do to so. Company does not guarantee the
accuracy, integrity or quality of material submitted by third parties
participating in the Online Community. Under no circumstances will
Company, its shareholders, directors, officers, directors, or employees be held
liable for any loss or damage caused by your reliance on information obtained
through the Online Community. It is your responsibility to evaluate the
information, opinion, advice, or other content available.
You agree that
you are responsible for any posts that you make, and for any consequences
thereof. You may only post and/or transmit information using your legal name.
To further these common goals when posting any material to any Online
Community, including without limitation, any statement or other content, or
otherwise participating in the Online Community, you agree not to:
- Post
and/or transmit any material that is unrelated to the subject matter of the
Online Community;
- Violate
the rights of Company or any third party (including rights of privacy and
publicity);
- Post
and/or transmit any material that is or deemed by Company to be defamatory, libelous, false, misleading
or inaccurate, obscene, pornographic, indecent, abusive, vulgar, violent,
bigoted, illegal, racially offensive, hateful, harassing, profane, sexually
oriented, threatening, offensive, invasive of personal privacy or sexually
graphic or explicit;
- Post
and/or transmit information that promotes or facilitates illegal activities or
piracy;
- Post
and/or transmit any material (i) that you don’t have the right to post or
transmit under applicable law, including copyright, trademark, trade secret or
securities laws, or (ii) in violation of your obligations any third party,
including nondisclosure agreements;
- Post
and/or transmit without authorization people’s private and confidential
information such as credit card numbers, social security numbers, and driver’s
and other license numbers.
- Falsely
state or otherwise misrepresent your affiliation with a person or entity.
We reserve the
right to investigate and take legal action against anyone who, in our sole
discretion, violates the restrictions set forth in this Agreement, including
without limitation removing any offending information or material and
terminating your access to the Online Community.
Links to
other websites. The
Website may contain links to other websites not operated by Company. The links are provided for your
convenience. The inclusion of any
links to other websites does not imply endorsement by Company of those sites or
the contents. We are not
responsible for the contents, links or privacy of any linked website. Access to any other sites linked to the
Website is at your own risk.
Links to the
Website. You
are expressly prohibited from framing or linking or otherwise using or
displaying the Website in such a manner so that it appears to be part of your
own or someone else's website. You shall not deep link or otherwise link in a
manner that bypasses the Website home page without our written consent. You shall not scrape/harvest any
webpage, including but not limited to any material or information.
Warranty and
Disclaimer of Warranty. COMPANY DISCLAIMS ALL
WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED AND THIS WEBSITE, ITS PRODUCTS AND
SERVICES, INCLUDING ANY INFORMATION CONTAINED ON IT IS PROVIDED "AS
IS" “AS AVAILABLE” WITH NO REPRESENTATIONS OR WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, COURSE OF PERFORMANCE, COURSE
OF DEALING OR USAGE OF TRADE, UNLESS SET OUT OTHERWISE HEREIN. YOU ASSUME TOTAL
RESPONSIBILITY AND RISK FOR YOUR USE OF THIS WEBSITE INCLUDING ANY INFORMATION
CONTAINED THEREIN.
Limitation
of Liability. COMPANY,
ITS AFFILIATES, EMPLOYEES, OFFICERS, REPRESENTATIVES, SERVICE PROVIDERS AND ITS
SUPPLIERS SHALL NOT BE RESPONSIBLE FOR NOR BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES
ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, OR INFORMATION CONTAINED
WITHIN THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, YOUR DOWNLOADING OR
UPLOADING OF ANY MATERIAL OR DOCUMENTS. YOUR SOLE REMEDY FOR DISSATISFACTION
WITH THE WEBSITE IS TO STOP USING THE WEBSITE.
IF ANY PART OF THIS LIMITATION
ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE
AGGREGATE LIABILITY OF COMPANY UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT
OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
Indemnity. You agree to defend, indemnify and hold
harmless, Company, its employees, officers, representatives, suppliers or
service providers from any loss, liability, claim or demand, including
reasonable attorney's fees, made by any third party due to or arising out of
your use of the Website, including without limitation, any information or
content you post and/or submit to the Website, any material you download from
the Website or any interference with the operation of the Website.
Submissions.
You
agree that Company is free to use any communication, comments, information,
ideas, concepts, reviews, techniques, content or any other material you may
send to us, including, without limitation, surveys, responses to questionnaires
or through postings and/or submissions to the Online Community and Website
without further compensation, acknowledgement or payment to you for any purpose
whatsoever including, but not limited to, developing, manufacturing and
marketing products and creating, modifying or improving the Website and our
products and services. Furthermore, by submitting any comment or other material
to the Online Community and/or the Website, submitting information to us, or in
responding to questionnaires, you grant us a perpetual, non-exclusive, fully
paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to
display, use, perform, reproduce, modify, distribute and create derivative
works of such material or information submitted in any media, software, or
technology of any kind now existing or developed in the future. By
posting or providing any such material or information, you represent and
warrant that public posting and use of such material or information by Company
will not infringe on or violate the rights of any third party.
Trademarks
and Copyrights. OSH,
OSH logo and other marks, logos, graphics, and trade dress used on the Website
are Company’s trademarks or the trademarks of third parties, and may not be
used in any manner (including in “meta-tags” or “hidden text”) without our
prior written approval. All the
materials contained on the Website are copyrighted except where explicitly
noted otherwise and are protected under national laws and international
treaties throughout the world. The
Website may also contain material that is subject to the copyright rights of
third parties.
Digital
Millennium Copyright Act Notice Policy. We
respect the intellectual property rights of others, and ask you to do the
same. It is our policy to terminate the access privileges of those who
repeatedly infringe the copyright rights of others. If you believe that
your work has been posted on the Website in a way that constitutes copyright
infringement, please contact us at the address below and provide the following
information: (1) an electronic or physical signature of the person authorized
to act on behalf of the owner of the copyright interest; (2) a description of
the copyrighted work that you claim has been infringed, and identification of
the URL or other specific location on the Website where the material that you
claim is infringing is located; (3) your address, telephone number, and email
address; (4) a statement by you that you have a good faith belief that the
disputed use is not authorized by the copyright owner, its agent, or the law;
and (5) a statement by you, made under penalty of perjury, that the above
information in your notice is accurate and that you are the copyright owner or
authorized to act on the copyright owner’s behalf.
Company’s
designated agent for notice of copyright infringement can be reached at:
General Counsel
Orchard Supply Hardware
6450 Via Del Oro
San Jose, CA 95119
(408) 281-3500
(408) 629-7174
legal@osh.com
Entire
Agreement. This
Agreement is the entire understanding and agreement between Company and you
with respect to the subject matter hereof.
Choice of
Law. This
Agreement shall be governed and interpreted in accordance with the substantive
law of the State of California without regard to its conflict of law
provisions. The parties agree,
that in any action arising out of this Agreement or relating to the operation
of the Website or content appearing therein, they irrevocably submit to the
jurisdiction of a state or federal court in California and, to the maximum
extent permitted by law, agree that either of those courts shall be the venue
of choice for any such action. Without limiting the effect of any disclaimer
contained herein, any cause of action you may have with respect to your use of
the Website must be commenced within one (1) year after the claim or cause of
action arises. You understand that the Website is directed only to residents of
the United States.
Miscellaneous.
The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provision. In the event that
any provision of this Agreement is found to be invalid or unenforceable, this
Agreement shall be construed in accordance with its terms as if the invalid or
unenforceable provision was not contained therein. No delay or failure by
Company to enforce any of this Agreement shall be a waiver of any or our rights
under this Agreement. Company may
assign its rights and duties under this Agreement to any party at any time
without notice to you. Your rights and duties under this Agreement are not
assignable by you without consent of Company.
