TERMS AND CONDITIONS (WEBSITE)
This website is owned and maintained by GOTHAM BAGS, LLC (the “Company”). These terms and conditions govern your use of this website; by using this website, you accept these terms and conditions in full. If you disagree with these terms and conditions or any part of these terms and conditions, you must not use this website.
License to use website
Unless otherwise stated, the Company and/or its licensors own the intellectual property rights in the website and material on the website. Subject to the license below, all these intellectual property rights are reserved. However, to the extent that material on the website has been uploaded by its users, the Company does not claim any ownership interest thereof or other authority to permit the use of any such material by any other party.
You may view, download for caching purposes only, and print pages from the website for your own personal use, subject to the restrictions set out below and elsewhere in these terms and conditions.
Except to the extent that you have ownership of any user material (defined hereinafter), you must not:
republish material from this website (including republication on another website);
sell, rent or sub-license material from the website;
show any material from the website in public;
reproduce, duplicate, copy or otherwise exploit material on this website for a commercial purpose;
or redistribute material from this website except for content specifically and expressly made available for redistribution.
You must not use this website in any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
You must not use this website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.
You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to this website without the Company’s express written consent.
In these terms and conditions, “user content” means material (including without limitation text, images, audio material, video material and audio-visual material) that you upload, post, and/or submit to this website, for whatever purpose.
You grant to the Company a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute your user content in any existing or future media. You also grant to the Company the right to sub-license these rights, and the right to bring an action for infringement of these rights.
You hereby represent to the Company that you have ownership, license, and/or authority to post and use any and all user content uploaded, posted, or otherwise submitted to the website by you. You represent, warrant and covenant that you shall not upload, post or transmit to or distribute or otherwise publish through the website any materials which: (i) restrict or inhibit any other user from using and enjoying the Website; (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent; (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or governmental regulation; (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (v) contain a virus or other harmful or destructive elements; (vi) contain any information, software or other material of a commercial nature; (vii) contain advertising of any kind; or (viii) constitute or contain false or misleading indications of origin or statements of fact. Your user content must not be illegal or unlawful, must not infringe any third party’s legal rights, and must not be capable of giving rise to legal action whether against you or the Company or a third party (in each case under any applicable law).
The Company may gather, process and use information and materials received from you (e.g., name, physical address, e-mail address) or collected through your use of the Website for any lawful reason or purpose.
You must not submit any user content to the website that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
The Company reserves the right to edit or remove any material submitted to this website, or stored on the Company’s servers, or hosted or published upon this website.
Notwithstanding the Company’s rights under these terms and conditions in relation to user content, the Company does not undertake to monitor the submission of such content to, or the publication of such content on, this website.
You covenant and agree, at your sole cost and expense, to indemnify, protect and save the Company harmless against and from any and all Indemnified Losses which may at any time be imposed upon, incurred by or awarded against the Company arising from, out of, attributable to or by reason of, your use of the website or arising out of the user content. “Indemnified Losses” shall mean Incurred damages, losses, liabilities, costs and expenses, obligations, penalties, fines, impositions, fees, levies, lien removal or bonding costs, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses (including, without limitation, attorneys’ and experts’ reasonable fees and disbursements) of any kind and nature whatsoever.
The Company reserves the right to restrict access to certain areas of this website, or indeed this entire website, at the Company’s discretion.
If the Company provides you with a user ID and password to enable you to access restricted areas of this website or other content or services, you must ensure that the user ID and password are kept confidential.
The Company may disable your user ID and password in the Company’s sole discretion without notice or explanation.
THE COMPANY WEBSITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE WEBSITE, IS PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE COMPANY MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE WEBSITE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE WEBSITE, FOR ANY HYPERTEXT LINKS TO THIRD PARTY WEBSITES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEBSITE OR ANY LINKED SITE. FURTHER, THE COMPANY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED, ERROR FREE OR THAT DEFECTS WILL BE CORRECTED, OR THAT THE COMPANY WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY SHALL NOT BE LIABLE FOR THE USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR ACCESS TO THE WEBSITE OR FOR ANY INFORMATION OBTAINED THROUGH THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY OR ANY OF ITS AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
Without prejudice to the generality of the foregoing paragraph, the Company does not warrant that: any of the user content or other information will be protected or otherwise stored securely, whether or not such information is considered “password protected”; this website will be constantly available, or available at all; or the information on this website is complete, true, accurate or non-misleading.
Limitations of liability
The Company will not be liable to you (whether under the law of contact, the law of torts or otherwise) in relation to the contents of, or use of, or otherwise in connection with, this website: to the extent that the website is provided free-of-charge, for any direct loss; for any indirect, special or consequential loss; or for any business losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data. These limitations of liability apply even if the Company has been expressly advised of the potential loss.
Nothing in this website disclaimer will exclude or limit any warranty implied by law that it would be unlawful to exclude or limit; and nothing in this website disclaimer will exclude or limit the Company’s liability in respect of any: death or personal injury caused by the Company negligence; fraud or fraudulent misrepresentation on the part of the Company; or matter which it would be illegal or unlawful for the Company to exclude or limit, or to attempt or purport to exclude or limit, its liability.
By using this website, you agree that the exclusions and limitations of liability set out in this website disclaimer are reasonable. If you do not think they are reasonable, you must not use this website.
If any provision of this website disclaimer is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this website disclaimer.
You hereby indemnify the Company and undertake to keep the Company indemnified against any Indemnified Losses incurred or suffered by the Company arising out of any breach by you of any provision of these terms and conditions. In the event that the Company prevails in any action against you for breach of any of the terms of this agreement, the Company shall be entitled to recover reasonable attorney’s fees, costs, and disbursements from you.
Breaches of these terms and conditions
Without prejudice to the Company’s other rights under these terms and conditions, if you breach these terms and conditions in any way, the Company may take such action as the Company deems appropriate to deal with the breach, including suspending your access to the website, prohibiting you from accessing the website, blocking computers using your IP address from accessing the website, contacting your internet service provider to request that they block your access to the website and/or bringing court proceedings against you.
The Company may revise these terms and conditions from time-to-time. Revised terms and conditions will apply to the use of this website from the date of the publication of the revised terms and conditions on this website. Please check this page regularly to ensure you are familiar with the current version.
The Company may transfer, sub-contract or otherwise deal with the Company’s rights and/or obligations under these terms and conditions without notifying you or obtaining your consent.
You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these terms and conditions.
If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
These terms and conditions, along with any further agreement(s) between you and the Company insofar as the posting of user content is concerned, constitute the entire agreement between you and the Company in relation to your use of this website, and supersede all previous agreements in respect of your use of this website.
Law and jurisdiction
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS. YOU HEREBY AGREE AND CONSENT THAT THE SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW YORK, COUNTY OF NEW YORK.
GENERAL TERMS AND CONDITIONS OF SALE
Formation of Contract
1.1 These terms and conditions are a complete statement of the agreement between GOTHAM BAGS, LLC (“SELLER”) and any purchaser of goods through this website (the “Buyer”) and supersedes all statements regarding the order and may be supplemented or amended only by separate written agreement.
1.2 Terms and conditions of Buyer (additional to or varying from those herein) shall not be binding on Seller unless expressly agreed to in writing or Seller. Payments from any Buyer without open accounts shall be made prior to shipment.
1.3 No offers or arrangements on orders shall be binding on Seller unless confirmed by Seller in writing. Seller’s quotations do not constitute binding offers unless expressly so stated.
Prices, Packing and Insurance
2.1 Prices are F.O.B. at Seller’s United States shipping point and do not include handling, insurance, assembly or any sales or other taxes.
2.2 If requested by Buyer in writing prior to shipment and at Seller’s sole option, Seller will insure the products ordered hereunder at Buyer’s expense against transport risks.
3.1 Payment from any Buyer shall be made upon the placing of any order for goods.
3.2 All payments shall be made free of charges, deductions, set-offs and withholdings of any kind. All costs of collection incurred by Seller including reasonable attorney’s fees shall be borne by Buyer.
3.3 Prompt payment is of the essence of this contract and a default in any payment will, at the election of Seller, operate as breach of the entire contract. Past due payments shall bear interest, compounded monthly at a rate of 3% above the rate of interest quoted from time to time by Citibank of New York as its “prime” or “base” rate.
3.4 If the credit of Buyer shall at any time, in the sole judgment of Seller, become impaired, Seller may at its option and without incurring any liability, divert or prevent the discharge of shipments en route to Buyer and cancel any unfilled portion of the contract, or require Buyer to give such security as Seller may specify to ensure payment or require payment in advance before making any further shipment. Seller shall not be required to discharge shipments or make delivery until any security or advance payment so-required by has been given or paid, and may divert shipments and/or cancel the unfilled portion of the contract if such security or payment shall have not been given or made by Buyer within the time specified by Seller. All costs and expenses incurred by Seller as a result of its exercise of any right or option under this paragraph shall due and owing from Buyer to Seller.
4.1 Unless otherwise specified in writing, delivery will be F.O.B. at Seller’s United States shipping points. Risk of loss or damage shall pass to Buyer when products are put in possession of the carrier even if payment terms other than F.O.B. at Seller’s shipping point are agreed upon. Seller may make partial deliveries. Delivery dates are approximate and will be calculated from the date that Seller shall have received all information necessary to permit Seller to proceed with work immediately and without interruption and all down payments or other security agreed upon. Late delivery can be the basis for a damage claim only if (i) Seller has agreed in writing to a firm delivery date and to a specified sum for liquidated damages in the case of delay; and (ii) Buyer shall have timely and fully performed all its contractual obligations hereunder. Seller is not required to accept changes requested after the order confirmation. Requests for change must be submitted in writing and received in time to be implemented. If Buyer requests changes to any products ordered, and Seller accepts said changes in writing, any prior agreement as to firm deliver dates shall be deemed extended by the time necessary to effect such changes and such changes shall be at Buyer’s cost. Orders may not be canceled by Buyer without the written consent of Seller. If orders containing Customer’s Own Material (COM) are canceled after production has begun, the COM cannot be returned or credited. A cancellation or restocking charge of up to the total amount of the order is applicable on orders canceled.
4.2 If any or all goods ordered are not delivered when ready due to the request of Buyer or cannot be delivered when ready for any reason referred to in Section 5 below, Seller shall have the right to invoice Buyer at any time thereafter and to place such products in storage. In such event (i) Seller’s delivery obligations shall be deemed fulfilled and title and all risk of loss or damage shall thereupan pass to Buyer; (ii) any amount otherwise payable to Seller upon delivery shall become due to payable upon presentation of invoices and Seller’s certification as to such cause, (iii) all expenses incurred by Seller, such as for preparation for and placement into storage, handling, storage, inspection, preservation and insurance, shall be due to payable by Buyer upon demand; and (iv) the warranty period referred to below shall commence.
5.1 At any point prior to deliver of the goods to Buyer, Seller may, at Seller’s sole option, cancel any order placed by Buyer and refund any funds paid by Buyer for the Goods. In such an event, Buyer’s remedies against Seller shall be strictly limited to the recovery of any sums actually paid by Buyer to Seller for the Goods that were not refunded and in the event of such a cancellation, Buyer shall not be entitled to make or recover any sum arising out of any claim for other any additional compensatory or any consequential, punitive, or special damages.
6.1 All of Seller’s products are carefully inspected prior to shipment. Since Seller is not responsible for damage in shipment or in storage, Buyer should carefully inspect all items upon delivery and note any damage on the delivery receipt. All claims for damage must be reported in writing to the carrier in accordance with applicable regulations and time limits. All claims against Seller for defects errors or shortages must be made by Buyer by registered letter within 72 hours of delivery, time being of the essence. Failure to make a timely claim shall result in an irrevocable waiver of the right to claim that any of the goods were damaged.
7.1 Seller warrants that it will repair of replace free of charge any product found to be defective which shall have been reported to Seller in writing within 1 year after delivery (or date of tender if products must be stored), except product or components which are (i) consumed in normal operation or subject to rapid wear due to their composition or utilization; (ii) damaged by natural wear and fear or natural influences; (iii) damaged by improper or careless handling, overloading, or inappropriate use in Seller’s sole reasonable discretion; and (iv) damaged by adjustments, modifications or repair work performed without Seller’s prior consent. Slight variations in color and shape may appear in certain product due to natural shading differences of individual textiles or leathers and are not covered by this warranty.
EXCEPT AS PROVIDED IN THIS ARTICLE 7, THIS WARRANTY SHALL BE IN LIEU OF ALL WARRANTIES. WHETHER WRITTEN. ORAL, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR USAGE OF TRADE ARISING IN CONTRACT OR IN TORT AND THE AFORESAID REMEDY IN PARAGRAPHS 6 AND 7 HEREOF SHALL BE EXCLUSIVE WITH RESPECT TO DEFECTIVE PRODUCTS.
Limitation of Liability
8.1 Except as provided in Articles 6 and 7, Seller shall not be liable for any costs, expenses or damages, including any special, incidental or consequential damages, incurred by Buyer or any third party, resulting from Seller’s performance of its obligations hereunder or the breach thereof. In no event shall Seller’s total liability on any claim, whether in contract, tort (including negligence) or otherwise, arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, replacement or use of any product exceed the price allocable to the goods or component thereof which gives rise to the claim.
9.1 Any order or agreement resulting here from shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its rules of the conflict of laws.
10.1 Buyer may not assign its rights or obligations arising hereunder or any contract resulting from this form without Seller’s written consent. Any attempt to assign any such rights or obligations without such consent is void. A waiver of a breach of any provision hereof will not constitute a waiver of any other breach hereof.