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Terms of Use

Welcome to D'Marie!

Effective Date: June 6, 2012

D’Marie provides a number of consumer and industry-specific platforms and services to the general public and to stylists, designers and other insiders in the fashion and entertainment industries.

These terms and conditions of use are a legal agreement (this “Agreement”) between you (together with the business entity, if any, that you represent, “You” or “Your”) and D’Marie Group, Inc. (“D’Marie” or “we”, “us” or “our”), establishing terms and conditions under which You will access and use the services and features, including our mobile applications (collectively, “Services”), available on or through D’Marie’s website located at www.dmariearchive.com and any related sub-domains or third party portals (“Website(s)”). Your use of the Website and related Services is also subject to the terms of our Privacy Policy, located at http://www.dmariearchive.com/privacy, as maybe in effect from time to time.

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE. BY USING THIS WEBSITE OR ANY OF OUR SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEBSITE OR USE ANY OF OUR SERVICES. IF YOU ARE PARTY TO A SEPARATE CLICK THROUGH OR SIGNED AGREEMENT WITH D’MARIE RELATING TO OUR SERVICES, THAT AGREEMENT SHALL SUPERSEDE THESE TERMS AND CONDITIONS OF USE WITH RESPECT TO SUCH SERVICES. BY ACCESSING THE WEBSITE OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE. HOWEVER, IF YOU HAVE DOWNLOADED FROM A THIRD PARTY ANY MOBILE APPLICATION WHICH IS A SERVICE OF D’MARIE, YOUR USE OF THAT APPLICATION IS SUBJECT IN ALL RESPECTS TO THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS OF USE, THEN DO NOT ACCESS OR USE OUR WEBSITE OR SERVICES.

1. Registration & Types of Users

Our Services are described in more detail on our Website. Certain portions of our Website and Services are available to the general public (“Guests”). However, certain core functionality of our Website and Services are available only to Guests who register with us (“Registered Users”). When You register for our Services as a Registered User, we will require certain information from You and we will provide You with certain information regarding the scope and specific terms of Your subscription (collectively, the “Registration Information”). Your right to access and use our Website and Services is limited in scope, revocable, personal, non-transferable and non-exclusive. You are responsible for obtaining any equipment and Internet service necessary to access and use our Website or Services.

2. Use and Access Terms.

(a) Access and Use Rights.

D’Marie hereby grants to You, on the terms and conditions set forth in this Agreement, a non-transferable, non-sublicensable, non-exclusive, limited right to access and use the modules of our Website and our Services that are generally available to Guests and those, if any, for which You are a Registered User, in each case solely for Your personal use. For each Registered User, access shall be through login credentials to be provided by D’Marie. You shall not modify any output of the Website or Services in a form that is modified from such output or which removes any of the proprietary marks on such output, unless agreed by D’Marie on a case-by-case basis. You acknowledge that any and all users of the Website or Services on your behalf, who obtain new login credentials provided to You, will be required to accept this Agreement before they are permitted to first access or use our restricted access Services.

(b) Subscription Periods for Registered Users.

Each Registered User may subscribe to the Services for an initial subscription period of one (1) year (the “Initial Subscription Period”), which will automatically renew for successive one.

(d) Fees & Payment Terms.

D’Marie reserves the right to charge fees for access to or use of the Website or Services, or for premium or supplemental functionality or services, in the future. If any such fees are established, D’Marie will provide You with prior notice of such fees. You shall pay each amount due under this Agreement in full within thirty (30) days of receipt of the applicable invoice. You shall pay interest of 1.5% per month on the amount shown on any invoice that is paid later than the due date.

(e) Third Party Products.

Your purchase of third party products, in connection with Your use of our Website or Services, is subject in all respects to the terms and conditions agreed between You and the third party provider of such products or services. We do not sell such third party products or services ourselves, but our Services can facilitate Your purchase of products and services directly from third parties. We may be compensated by third parties in exchange for facilitating such purchases or for advertising on our Website or Services. Please see Section 7 of this Agreement for more detail on the terms applicable to third party products and services referenced on our Website or through our Services.

(f) Indemnification.

You shall indemnify and hold D’Marie, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to a third party to the extent caused by (i) the use of the Website or Services by You, or any other users accessing the Website or Services using login credentials provided to You, whether or not You have knowledge of or have authorized any such access or use; (ii) any information or results obtained through use of the Website or Services or access to the Website or Services; (iii) Your gross negligence or willful misconduct; or (v) any commercial relationships You establish with any user or other third party in connection with the Website or Services. D’Marie shall indemnify and hold you and your directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to such third party to the extent caused by a claim alleging that the Website or Services directly infringe a copyright, a U.S. patent or a trademark of such third party. A party’s obligations to indemnify the other party with respect to any third party claim, action or proceeding shall be conditioned upon the indemnified party: (A) providing the indemnifying party with prompt written notice of such claim, action or proceeding under this clause (f), (B) permitting the indemnifying party to assume and solely control the defense of such claim, action or proceeding and all related settlement negotiations, with counsel chosen by the indemnifying party, and (C) cooperating at the indemnifying party’s request and expense with the defense or settlement of such claim, action or proceeding which cooperation shall include providing reasonable assistance and information. No indemnified party shall enter into any settlement agreement for which it will seek indemnification under this Agreement from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.

(g) Term.

For Guests, this Agreement shall be effective for so long as such Guests access or use the Website or Services. For Registered Users, this Agreement shall be in effect from the date of their registration until the one year anniversary of such date, upon which this Agreement shall automatically renew for successive one (1) year periods unless terminated by either party by delivery of written notice of non-renewal at least thirty (30) days prior to the end of the then-current one (1) year term. Each Subscription Period then in effect shall continue for the remainder of its term. Either party may terminate this Agreement and all Subscription Periods at any time upon thirty (30) days’ written notice in the event of a breach by the other party that is not cured in such thirty (30) day period. Notwithstanding anything to the contrary herein, we reserve the right to modify or terminate our Website and Services at any time. As between You and D’Marie, Sections 2(d), 2(f), 2(g), 3, 4(e), 5, 8, 9 and 10 of this Agreement shall survive the expiration or termination of this Agreement according to their terms.

3. Intellectual Property Rights; Restrictions.

(a) Restrictions.

You shall not, and shall not permit any person or entity to: (i) resell or use the Website or Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of the Website or Services; (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Website or Services or any software component thereof; (iv) use, or allow the use of, the Website or Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; and/or (v) act in a fraudulent, tortious, malicious, or negligent manner when using the Services.

(b) Ownership.

You acknowledge that the structure, organization, and code used in conjunction with the Website and Services are proprietary to D’Marie and that D’Marie and/or its suppliers retain exclusive ownership of the Website and Services, documentation, and any other intellectual property rights relating to the Website and Services, including all modifications, enhancements, derivatives, and other software and materials relating to the Website and Services, and all copies thereof. You shall not sell, transfer, publish, disclose, display or otherwise make available the Website or Services including any modifications, enhancements, derivatives, and other software and materials provided hereunder by D’Marie or copies thereof to others in violation of this Agreement.

(c) No Other Rights.

Except as expressly set forth in this Agreement or other written agreement between You and D’Marie, no license or other right in or to the Website, Services or the content thereof are granted to You, by implication, estoppel, or otherwise, and all such licenses and rights are hereby reserved.

(d) Suggestions.

If You provide any feedback, improvements or other suggestions (collectively, “Suggestions”) to D’Marie for improvements to the Website or Services, You hereby grant to D’Marie a non-exclusive, royalty-free, fully-paid, perpetual, irrevocable license under such Suggestions and all intellectual property rights therein to exploit and distribute the Suggestions in connection with the Website and Services, except as may be otherwise agreed in writing.

4. Use of Information.

(a) Your Submissions.

In the course of Your use of the Website and Services, it is contemplated that You will choose to display, upload, submit, transmit or publish on or through the Services text, graphics, images, videos, sounds, data, reports, links, information, works of authorship or any other materials to D’Marie or any other user via the communications platform included on the Website or Services, as it may be available from time to time (collectively, "Submissions"). If you are a Registered User, You agree to use good faith efforts to keep all of the information in Your accounts up to date and accurate. Your Submissions are subject to our Privacy Policy.

(b) D’Marie’s Right to Use Your Submissions.

You hereby grant to D’Marie and its affiliates a non-exclusive, fully-paid, irrevocable, royalty-free, perpetual, worldwide license to use, modify, publicly perform, publicly display, reproduce and distribute Your Submissions, subject to our Privacy Policy. You further hereby grant to D’Marie and its affiliates a non-exclusive, fully-paid, irrevocable, royalty-free, perpetual, worldwide license to use, modify, reproduce and aggregate all of Your Submissions for the purpose of providing our products and services to You, other users and the general public, subject to our Privacy Policy. D’Marie may use any aggregated data regarding Your Submissions, in a manner which does not identify You or any other individual, for any lawful purpose, including without limitation, for marketing and advertising purposes.

(c) Your Use of Other Users’s Submissions.

You agree to use other users’ Submissions only for the purpose for which those Submissions are provided to You in connection with Your use of the Website and Services. You agree and acknowledge that other users’ Submissions are subject to intellectual property rights of those users, and that D’Marie does not, and does not have the power to, grant to You any rights under any such intellectual property rights.

(d) You Must have the Right to Provide Submissions.

You are solely responsible for the Submissions that You post, any material or information that You transmit to others, and Your interactions with others. You represent and warrant that: (i) You own the Submissions posted by You or otherwise have the right to grant the license set forth in the above paragraphs; and (ii) the posting of Your Submissions does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees and any other monies owing any person by reason of any Submissions posted by You.

(e) Confidentiality.

You agree that the Website, Services and the output thereof, and all pricing and subscription plans provided by D’Marie, other than your Submissions, are the confidential information of D’Marie; You agree not to disclose any of such confidential information to any third party except to the extent expressly permitted by this Agreement and to use such confidential information solely for the purposes of this Agreement. D’Marie may require You to agree to a non-disclosure agreement prior to sharing certain information with you.

5. Limited Warranty.

(a) Mutual Warranties.

Each of You and D’Marie represents and warrants that it has the legal power and authority to enter into this Agreement.

(b) Compliance with Laws.

The Website and Services are provided, operated and administered by D’Marie from our offices in New York, NY, USA. You are solely responsible for ensuring that Your use of the Website and Services complies with applicable laws. You further agree that You will not access or use the Website or Services in any country or in any manner that is prohibited by any applicable law or regulation.

(c) Disclaimers.

You acknowledge that the Website and Services are provided “AS IS” without any warranties, express or implied. D’Marie and its licensor’s are not liable or responsible for any results generated through the use of the Website or Services. D’Marie does not warrant or represent that the Services will be error-free or uninterrupted or secured. WE PROVIDE NO WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON–INFRINGEMENT.

Standards of User Conduct. You may not use this Website or the Services to:

1.
post any Submissions or transmit via or through the Website or Services any information, data, text, images, files, links, software, chat, communication or other content that is, or which D’Marie considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, or otherwise objectionable, including without limitation blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, excessively violent, harassing or otherwise objectionable content;

2.
sell or promote any products or services that are unlawful in the location at which the Submission is posted or received;

3.   sell or promote controlled pharmaceutical substances, tobacco, fire arms or alcoholic beverages;

4.   introduce viruses, worms, Trojan horses and/or harmful code on the Internet;

5.   display material that exploits children under 18 years of age;

6.
post any Submissions or otherwise infringe in any way or violate any copyright, patent, trademark, service mark, trade name, trade secret or other intellectual property right of any third party;

7.   promote, solicit or participate in multi-level marketing or pyramid schemes;

8.   harass, embarrass or cause distress or discomfort upon another participant, user or other individual or entity;

9.   impersonate any other person, including but not limited to, any other user or a D’Marie employee or agent;

10.
post or disclose any personally identifying information or private information about children or any third parties without their consent (or their parent's consent in case of a child under 18 years of age);
11.
post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation on our bulletin boards, including without limitation solicitations of credit card numbers, solicitations for sponsors or promotion of raffles or contests;
12.
intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law while using or accessing the Website or Services, in any manner; or
13.
invade the privacy or violate any personal or proprietary right (including intellectual property rights) of any person or entity.

D’Marie reserves the right, without prior notice and in its sole discretion, to decide whether Submissions violate this Agreement for any of the above reasons or for any other reason, and if D’Marie does so, to remove such Submissions which You post to the Website and/or terminate Your access to any restricted access Services of D’Marie.

7. No Implied Endorsements; Links to Other Users and to Third-Party Web Sites.

In no event shall any reference to any third party or third party product or service, including without limitation any preferred vendor or similar designation, be construed as an approval or endorsement by D’Marie of that third party or of any product or service provided by a third party. The Website and Services provide connections with other users and links to non-D’Marie web sites. These connections and links are provided to You as a convenience, and D’Marie is not responsible for the acts or omissions of any user or any content provided by another user or of a third party web site. Any non-D’Marie website accessed from the Website or Services is independent from D’Marie, and D’Marie has no control over the content of that website. In addition, the inclusion of a user in the Website or Services or a link to any non-D’Marie website does not imply that D’Marie endorses or accepts any responsibility for such user or the content or use of such website.

8. Notice and Take Down Procedures & Copyright Agent.

If You believe any materials accessible on or from the Website and Services infringe Your copyright, You may request removal of those materials (or access thereto) from the Website and Services by contacting D’Marie’s copyright agent (identified below) and providing the following information:

A.
Identification of the copyrighted work that You believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
B.
Identification of the material that You believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.

C.  Your name, address, telephone number and (if available) e-mail address.

D.
A statement that You have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law.
E.
A statement that the information that You have supplied is accurate, and indicating that under penalty of perjury, You are the copyright owner or are authorized to act on the copyright owner's behalf.

F.   A signature or the electronic equivalent from the copyright holder or authorized representative.

D’Marie's agent for copyright issues relating to this Website and Services is as follows:

Frank Spadafora
D’Marie Group, Inc.
794 9th Avenue, #2RN
New York, NY 10019 USA
Tel: (206) 465-5482
media@dmariearchive.com

In an effort to protect the rights of copyright owners, D’Marie maintains a policy for the termination, in appropriate circumstances, of users who infringe the copyright of any third party.

9. Limitation of Liability.

(a) Limitation.

D’Marie’s aggregate liability for all claims arising from this Agreement shall not exceed the greater of (i) One U.S. Dollar ($1) and (ii) the total fees paid by You to D’Marie, if any, for access to and use of the Services from which such liability arose, during the then-preceding twelve (12) months.

(b) No Class Actions.

ANY CLAIMS BROUGHT BY YOU OR D’MARIE IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE OR THE SERVICES MUST BE BROUGHT IN THAT PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. EACH PARTY HEREBY WAIVES ANY RIGHT TO SEEK REMEDY AGAINST THE OTHER PARTY, IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE AND THE SERVICES, THROUGH A CLASS ACTION.

(c) Disclaimer.

IN NO EVENT SHALL DMARIE, ITS LICENSORS, VENDORS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE WEBSITE OR THE SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

10. Miscellaneous.

This Agreement shall be governed by the laws of the State of New York, without regard to (i) its principles of conflicts of law to the extent such principles would permit the application of the law of any other jurisdiction, (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. You may not assign or transfer this Agreement in whole or in part to any third party. This Agreement shall bind and inure to the benefit of the parties to this Agreement and their respective successors, permitted transferees, and permitted assigns. D’Marie and You are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. This Agreement, together with any written or click through agreement between You and D’Marie, contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, and cannot be amended except by a writing signed by both parties or by D’Marie’s posting of an amended version of this Agreement on its Website. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. If any part of this Agreement is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.

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