termsErrors, Inaccuracies, and Omissions
Occasionally there may be information on our website that contains typographical errors, inaccuracies, or omissions related to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order.)
"dELiA*s" is the interactive online service operated by Butterfly Retail Acquisitions LLC on the World Wide Web of the Internet, consisting of information services and content provided by dELiA*s, affiliates of dELiA*s, and other third parties.
(A) This Agreement, which incorporates by reference other provisions applicable to use of dELiA*s Online, including, but not limited to, supplemental terms and conditions set forth in paragraph 13 hereof ("Supplemental Terms") governing the use of certain specific material contained in dELiA*s Online, sets forth the terms and conditions that apply to use of dELiA*s Online by each end user thereof ("End User"). By using dELiA*s Online (other than to read this Agreement for the first time), End User agrees to comply with all of the terms and conditions hereof. The right to use dELiA*s Online is personal to End User and is not transferable to any other person or entity. End User shall be responsible for protecting the confidentiality of End User's password(s), if any.
(B) dELiA*s shall have the right at any time to change or discontinue any aspect or feature of dELiA*s Online, including, but not limited to, content, hours of availability, and equipment needed for access or use.
3. Changed Terms.
dELiA*s shall have the right at any time to change or modify the terms and conditions applicable to End User's use of dELiA*s Online, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions, or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on dELiA*s Online, or by electronic or conventional mail, or by any other means by which End User obtains notice thereof. Any use of dELiA*s Online by End User after such notice shall be deemed to constitute acceptance by End User of such changes, modifications, or additions.
End User shall be responsible for obtaining and maintaining all telephone, computer hardware, and other equipment needed for access to and use of dELiA*s Online and all charges related thereto.
5. End User Conduct.
(A) End User shall use dELiA*s Online for lawful purposes only. End User shall not post or transmit through dELiA*s Online any material which violates or infringes in any way upon the rights of others; which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable; which encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law or that without dELiA*s express prior approval contains advertising or any solicitation with respect to products or services. Any conduct by an End User that in dELiA*s discretion restricts or inhibits any other End User from using or enjoying dELiA*s Online will not be permitted. End User shall not use dELiA*s Online to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users of dELiA*s Online to become users of other online services competitive with dELiA*s Online.
(B) dELiA*s Online contains copyrighted material, trademarks, and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music, and sound, and the entire contents of dELiA*s Online are copyrighted as a collective work under the United States copyright laws. dELiA*s owns a copyright in the selection, coordination, arrangement, and enhancement of such content, as well as in the content original to it. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. End User may download copyrighted material for End User's personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication, or commercial exploitation of downloaded material will be permitted without the express permission of dELiA*s and the copyright owner. In the event of any permitted copying, redistribution, or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend, or copyright notice shall be made. End User acknowledges that it does not acquire any ownership rights by downloading copyrighted material.
(C) End User shall not upload, post, or otherwise make available on dELiA*s Online any material protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right, and the burden of determining that any material is not protected by copyright rests with End User. End User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of dELiA*s Online, End User automatically grants or warrants that the owner of such material has expressly granted dELiA*s the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed for the full term of any copyright that may exist in such material. End User also permits any other End User to access, view, store, or reproduce the material for that End User's personal use. End User hereby grants dELiA*s the right to edit, copy, publish, and distribute any material made available on dELiA*s Online by End User.
(D) The foregoing provisions of Section 5 are for the benefit of dELiA*s, its subsidiaries, affiliates, and third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
(E) Content Ownership; Indemnity. As between you and dELiA*s, you are and will remain the owner of the UGC, and you represent, warrant and covenant to us that you own all right, title and interest, including copyright, in and to the UGC you submit or post to the Site and such UGC is truthful and accurate and shall not breach, infringe, contravene, detrimentally affect any other party's rights whatsoever, including intellectual property rights and that no other party has any rights to it including so-called "moral rights." You also agree to defend, indemnify and hold dELiA*s, its affiliates, and its and their directors, officers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Site, your posting, submitting, publishing or transmitting any UGC or other materials and/or your breach or violation of the law or of these Terms and Conditions. dELiA*s reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with dELiA*s defense of such claim. In other words, you promise that no other company or person will claim that you stole or are inappropriately using the Content and that if they do, or if you do other things that may make us liable for legal claims for what you do using the visual commerce features, you will legally protect us from that claim and pay any money that might be owed as a result, whether to our lawyers, your lawyers, a court or the other person or company making the claim.
(F) Our Right to Use the Content. By submitting, posting or displaying User Generated Content on the web with our hashtag or social media handle, you are automatically granting, and hereby do grant to dELiA*s, a perpetual, worldwide, non-exclusive, fully paid-up, fully transferable license to use (including copy, display, perform, publish, modify, adapt and translate) such UGC in all forms and media. This means that our right to possess, use and display the Content anywhere and through any means will never expire, that we will never owe you any money for it and that we may allow others to use or possess the Content. If you remove the Content from the internet, however, it will no longer appear on the Site's gallery and is removed from our internal systems and will no longer used on any of our channels going forward from that point on. We will also do our best to make sure any company or person that we might give the UGC to follows the same rules and procedures we do.
6. Disclaimer of Warranty; Limitation of Liability.
(A) END USER EXPRESSLY AGREES THAT USE OF dELiA*s ONLINE IS AT END USER'S SOLE RISK. NEITHER dELiA*s, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, OR LICENSORS WARRANT THAT dELiA*s ONLINE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF dELiA*s ONLINE, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH dELiA*s ONLINE.
(B) dELiA*s ONLINE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. END USER SPECIFICALLY ACKNOWLEDGES THAT dELiA*s IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH END USER.
(D) IN NO EVENT WILL dELiA*s, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING dELiA*s ONLINE OR THE dELiA*s ONLINE SOFTWARE BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE dELiA*s ONLINE. END USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON dELiA*s ONLINE.
(E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER dELiA*s, NOR ITS AFFILIATES, INFORMATION PROVIDERS, OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN dELiA*s ONLINE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE END USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE, OR CONSEQUENTIAL DAMAGES.
dELiA*s shall have the right, but not the obligation, to monitor the content of dELiA*s Online, including chat rooms and forums, to determine compliance with this Agreement and any operating rules established by dELiA*s and to satisfy any law, regulation, or authorized government request. dELiA*s shall have the right in its sole discretion to edit, refuse to post, or remove any material submitted to or posted on dELiA*s Online. Without limiting the foregoing, dELiA*s shall have the right to remove any material that dELiA*s, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
End User agrees to defend, indemnify, and hold harmless dELiA*s, its affiliates and their respective directors, officers, employees, and agents from and against all claims and expenses, including attorneys' fees arising out of the use of dELiA*s Online by End User.
Either dELiA*s or End User may terminate this Agreement at any time. Without limiting the foregoing, dELiA*s shall have the right to immediately terminate any passwords or accounts of End User in the event of any conduct by End User which dELiA*s, in its sole discretion, considers to be unacceptable, or in the event of any breach by End User of this Agreement. The provisions of Sections 5(B), 5(C), 5(D), 6, 8, 10 and this Section 9 shall survive termination of this Agreement.
dELiA*s and its logos are trademarks of Butterfly Retail Acquisitions LLC. All rights reserved. All other trademarks appearing on dELiA*s are the property of their respective owners.
11. Third Party Content.
dELiA*s is a distributor (and not a publisher) of content supplied by third parties and End Users. Accordingly, dELiA*s has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, End Users, or any other user of dELiA*s Online, are those of the respective author(s) or distributor(s) and not of dELiA*s. Neither dELiA*s nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 6 above for the complete provisions governing limitation of liabilities and disclaimers of warranty.)
In many instances, the content available through dELiA*s Online represents the opinions and judgments of the respective information provider, End User, or other user not under contract with dELiA*s. dELiA*s neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on dELiA*s Online by anyone other than authorized dELiA*s employee spokespersons while acting in their official capacities. Under no circumstances will dELiA*s be liable for any loss or damage caused by an End User's reliance on information obtained through dELiA*s Online. It is the responsibility of End User to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, or other content available through dELiA*s Online.
One or more patents may apply to this website, including without limitation: U.S. Patent Nos. 5,528,490; 5,761,649; and 6,029,142. This Agreement and any operating rules for dELiA*s Online established by dELiA*s constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of Georgia, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
13. Supplemental Terms.
By accepting this Agreement, End User hereby agrees and accepts the Required End User Terms and Conditions that appear as Exhibit A to this Agreement immediately following this Agreement.
14. Backorder Status.
If you add an item to your cart and a message is displayed that the item is on Backorder, the item is expected to be available by the date given. You may order that item and it will be shipped when it arrives in our warehouse. These dates given are subject to change. If you are paying by credit card you won't be billed until the item is shipped. We do not offer express delivery for backordered items.
15. Proposition 65.
We at dELiA*s are committed to conducting our business in a responsible, ethical, and lawful manner. Accordingly, we have implemented certain practices to further such efforts.
California Proposition 65 Warning
Some products sold on this e-commerce website contain a chemical known to the State of California to cause cancer, birth defects, and other reproductive harm.
Belts, footwear, purses, handbags, wallets, clutches, and/or totes made of vinyl, imitation leather, and/or leather material contain lead and/or other substances that are known to the State of California to cause cancer, birth defects, and other reproductive harm.
Brass and bronze hardware contain lead and/or other substances that are known to the State of California to cause cancer, birth defects, and other reproductive harm.
Galvanized metal and some of its constituents contain lead and/or other substances that are known to the State of California to cause cancer, birth defects, and other reproductive harm.
Further information regarding California Proposition 65 may be obtained online by visiting: http://www.oehha.org/prop65.html
EXHIBIT A TO dELiA*s Online End User AGREEMENT
Required End User Terms and Conditions
(References to "Company" in this Schedule A are to Butterfly Retail Acquisitions LLC.
For purposes of these Required End User Terms and Conditions, "Company" includes Company, any affiliated and subsidiary companies of the Company, any subcontractors and suppliers of the foregoing, including AT&T Global Communications Services Inc., and the directors, employees, officers, agents, subcontractors, and suppliers of all of them.
1. End User is solely responsible for the content of any transmissions using the Services, or any other use of the Services, by User or by any other person or entity End User permits to access the Services (each such person, also a "User"). End User agrees that it and any other User will not use the Services for illegal purposes, to violate the rights of any third party, or to interfere with or disturb other network users, network services, or network equipment. Violations of the foregoing may result in removal of violative communications and/or early termination of the Service. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and using the network to make unauthorized entry to any other machine accessible via the network.
2. End User shall limit access to and use of the Services to its employees (and, in the case of an End User that is a nonprofit educational institution, to employees and students), shall not authorize any person to use the Services other than for End User's business purposes, and shall not resell or otherwise generate income by providing access to the Services to any other User.
3. End User shall defend, indemnify, and hold harmless Company (as defined in Paragraph 1.A.) from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by: (a) any person based upon the content of any transmissions by End User or any User using the Services or any other use of the Services by End User or any User and (b) Users in connection with the Services, regardless of the form of action, whether in contract, tort, warranty, or strict liability. However, End User shall have no obligation to indemnify and defend Company against claims for direct damages to real or tangible personal property, or for bodily injury or death, proximately caused by Company"s negligence.
4. End User agrees to comply, and to cause any User to comply, with United States law with regard to the transmission of technical data that is exported from the United States using the Services.
5. COMPANY MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. COMPANY'S LIABILITY TO END USER ON ACCOUNT OF ANY ACTS OR OMMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE GREATER OF (A) $25,OOO FOR EACH SITE PROVISIONED FOR SERVICES UNDER THIS AGREEMENT OR (B) THE AMOUNTS PAID BY END USER FOR SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM FOR DAMAGES, IN NO EVENT TO EXCEED AN AGGREGATE OF $50,000 IN THE CASE OF (A) OR (B). HOWEVER, NOTHING IN THIS SUBPARAGRAPH 1.G. LIMITS COMPANY'S LIABILITY FOR DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY, OR FOR BODILY INJURY OR DEATH, PROXIMATELY CAUSED BY COMPANY'S NEGLIGENCE.
7. COMPANY SHALL NOT BE LIABLE FOR INDIRECT INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS, OR LOST REVENUES, WHETHER OR NOT COMPANY HAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE THAT USER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER UNLESS SUCH DAMAGE IS CAUSED INTENTIONAL ACT OF COMPANY. COMPANY SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO END USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS, OR DESTRUCTION OF USER'S NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN ANY INSTANCE INVOLVING PERFORMANCE OR NONPERFORMANCE BY COMPANY WITH RESPECT TO SERVICES OR PRODUCTS PROVIDED HEREUNDER, END USER'S SOLE REMEDY SHALL BE (A) IN THE CASE OF SERVICES, REFUND OF A PRO RATA PORTION OF THE PRICE PAID FOR SERVICES WHICH WERE NOT PROVIDED, OR (B) IN THE CASE OF PRODUCTS, REPAIR OR RETURN OF THE DEFECTIVE PRODUCT TO COMPANY FOR REFUND, AT THE OPTION OF COMPANY. EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN THE CASE OF REFUND FOR LOST SERVICE GREATER THAN TWENTY-FOUR (24) HOURS.
8. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.