TERMS OF USE

Last Updated: September 12, 2016

 

These Terms of Use govern your use of the website located at www.dkny.com (the “Site”) and any other website, microsite, mobile device application, or Internet property owned, or operated by us.  We refer to the Site and these other properties collectively as the "Properties.” The Properties are made available to you by The Donna Karan Company LLC and The Donna Karan Company Store LLC, 240 West 40th Street, New York, New York 10018, +1-877-316-0975 (collectively, "DKC" or "we" or "us").

If you do not agree to these Terms of Use, you may not access or otherwise use the Properties.

 

 

RIGHTS IN MATERIALS

As between you and DKC, DKC owns the Properties, all the content (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, software, etc.), code, data and materials on the Properties, and the look and feel, design and organization of the Properties.  This includes all intellectual property and proprietary rights in these materials. When you use or download the Properties you do not acquire any ownership of any such content, code, data or materials.

The Properties are only for your personal, non-commercial use. You may not make any commercial use of the Properties, or any content, code, data or materials on the Properties, unless you have received our prior written permission.

Except as we expressly permit, you may not download, display, copy, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on the Properties. Doing so may violate or infringe copyright and other laws of the United States of America and other countries, as well as applicable local and state laws, and may subject you to liability for such unauthorized use.  We will enforce our intellectual property rights to the fullest extent of the law, including by seeking criminal prosecution.

 

 

TRADEMARKS

The trademarks, logos, service marks and trade names (collectively the "TRADEMARKS") displayed on the Properties are registered and unregistered Trademarks of DKC or its affilliates (or other rights holders) and may not be used in any manner that is likely to cause customer confusion, or that disparages or discredits DKC or the applicable rights holder. You do not receive, by implication or otherwise, any license or right to use any Trademark displayed on the Properties without our prior written permission.

We will enforce our Trademark rights to the fullest extent of the law, including by seeking of criminal prosecution.

 

 

USER INFORMATION

When you use the Properties, you may be asked to provide certain personal information to us ("USER INFORMATION"). OUR INFORMATION COLLECTION AND USE POLICIES WITH RESPECT SUCH USER INFORMATION ARE SET FORTH IN OUR PRIVACY POLICY, WHICH IS PART OF THESE TERMS OF USE.

You are solely responsible for the accuracy and content of your User Information and you agree to keep it up to date.

 

 

USE OF THE PROPERTIES

You are responsible for your use of the Properties and for any use of Properties made using your account.

Our goal is to create a positive and safe experience when you and others use the Properties. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us.   When you use the Properties, you may not:

 violate any law or regulation; violate or infringe any other party’s intellectual property, privacy, publicity, or other legal rights; transmit anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable or inappropriate; make statements or post materials that are false or misleading; send unsolicited or unauthorized advertising or commercial communications, such as spam; transmit any malicious or unsolicited software; stalk, harass, or harm another individual; impersonate or misrepresent your affiliation with someone else; use any means to "scrape," "crawl," or "spider" any web pages contained in Properties (although DKC may allow operators of public search engines to use spiders to index materials from Properties for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials, and DKC reserves the right to revoke these exceptions either generally or in specific cases); use automated methods to send more requests to DKC servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser; or interfere with or disrupt the Properties.

 

 

TERMINATION

DKC may change, suspend or discontinue any aspect of the Properties or the Properties’ services at any time. If you violate any of these Terms of Use, your permission to use the Properties automatically terminates.

 

 

CHANGES TO TERMS OF USE

DKC may, at its sole discretion, change, add to or remove any portion of these Terms of Use at any time. Changes in these Terms of Use will be effective when posted on the Properties.

 

 

USER GENERATED CONTENT

As between you and DKC, you own and are entirely responsible for any data, text, software, music, sound, photographs, graphics, images, videos, messages, or other content or materials that you may submit, transmit or otherwise make available on or through any Properties (collectively, "USER CONTENT"). All User Content is and will be considered non-confidential and non-proprietary. You acknowledge and agree that you waive any moral (or similar) rights that you may have in any territory in respect of User Content, including but not limited to the right to be attributed as the author of the User Content and the right not to have the User Content edited or changed in a way you are not happy with.

 

 

UTILIZING USER CONTENT

You grant DKC and its affiliates, representatives and assigns the right to use any or all your User Content, anywhere in the world for an unlimited period of time, in connection with the Properties for any commercial or non-commercial purposes.  We may exercise these rights without notice to you and without paying any compensation to you.  We may modify your User Content in our discretion.  DKC is not required to host, display, or distribute your User Content and we may remove or edit it at any time.

 

 

USER PROMISES

You promise that: (a) you own or have acquired all of the rights in your User Content (including, without limitation, all rights to the audio, video, or digital recording and the performance contained in your User Content) necessary for you to grant to DKC the usage rights in your User Content as described in these Terms of Use; (b) you have paid and will pay in full any financial obligations, of any kind, arising from any use of your User Content; (c) you are the individual pictured or heard in your User Content, or, alternatively, you have obtained permission from each person (including consent from parents or guardians for any individual under the applicable age in their territory where they can legally grant such permission themselves) who appears or is heard in your User Content to enable you to grant the rights to DKC described in these Terms of Use; (d) you will make such permissions available to DKC upon request; (e) your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or any other legal rights of any third party; and (f) your User Content complies with these Terms of Use.

You agree to keep all records necessary to establish that your User Content does not violate any of the foregoing promises and to make such records available to DKC upon DKC's request.

 

 

FEEDBACK

If you provide us with any ideas, know-how, concepts, techniques, comments, criticisms, reports, or other feedback other than User Content ("FEEDBACK"), whether oral or written, we may use them for any purpose. We may do so without notice to you and without paying any compensation to you.  All Feedback is and will be considered non-confidential and non-proprietary.

 

 

MONITORING AND MANAGING USER CONTENT

We may, but are not required to, monitor and review your User Content.

 

DKC does not endorse or control the User Content transmitted or posted on the Properties and therefore, we are not responsible for it.   We do not guarantee the accuracy, integrity, or quality of User Content and User Content may not necessarily reflect the views of DKC.

You understand that by using the Properties, you may be exposed to User Content that is offensive, indecent or objectionable to you.  We will not be liable to you in any way for any User Content for which we are not responsible, including, for example, for any errors or omissions in any User Content, or for any loss or damage of any kind experienced by you if you use or rely on any User Content made available via the Properties.

 

 

DIGITAL MILLENNIUM COPYRIGHT ACT

DKC respects the intellectual property rights of others. Upon proper notice, DKC will remove User Content or other applicable content that violates copyright law and terminate the accounts of repeat infringers. Pursuant to 17 U.S.C. § 512, DKC has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your work has been copied in a way that constitutes copyright infringement, please send DKC’s copyright agent (listed below) a notification of claimed infringement with all of the following information:

(a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(b) identification of the claimed infringing material and information reasonably sufficient to permit DKC to locate the material on the Properties;

(c) information reasonably sufficient to permit DKC to contact you, such as an address, telephone number, and, if available, an e-mail address;

(d) 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;

(e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and

(f) your physical or electronic signature.

Please send all of the information listed above to the following DKC copyright agent:

Jodi Sarowitz
Intellectual Property Counsel
The Donna Karan Company LLC and The Donna Karan Company Store LLC
240 West 40th Street
New York, NY 10018
Tel: 212-768-5957
Fax: 212-768-5887
E-mail: ipenforcement@dkintl.com

 

Please do not send notices or inquiries unrelated to alleged copyright infringement to DKC’s designated agent.

 

LINKING; THIRD PARTY WEBSITES

If you include a link from any other website to the Site or to any of the Properties, such link shall open in a new browser window. You agree not to link from any other website to www.dkny.com or to any of the Properties in any way that "frames" any of our content or that surrounds or obscures any portion of the Properties with any other content, materials or branding. We may revoke your right to link to the Properties from your website at any time upon written notice to you.

You may be able to access or use the Properties from a third-party website, Internet resource, or software application ("LINKED SITES"). YOU MAY ALSO BE ABLE ACCESS AND USE A LINKED SITE FROM A LINK AVAILABLE ON THE PROPERTIES. WE HAVE NO RESPONSIBILITY FOR LINKED SITES. THE INCLUSION OF ANY LINK TO SUCH LINKED SITES ON ANY OF THE PROPERTIES DOES NOT IMPLY OUR ENDORSEMENT, SPONSORSHIP, OR RECOMMENDATION OF THAT SITE OR OF ANY PRODUCT OR SERVICE OFFERED BY THAT SITE.  WE DO NOT PROMISE THAT THE CONTENTS OF ANY LINKED SITE ARE ACCURATE, COMPLIANT WITH LOCAL, STATE OR FEDERAL LAW, INCLUDING ANY INTELLECTUAL PROPERTY LAWS.  YOUR USE OF ANY LINKED SITE IS AT YOUR OWN RISK AND YOU ASSUME ALL RESPONSIBILITIES AND CONSEQUENCES RESULTING FROM SUCH RELIANCE.

 

 

INDEMNIFICATION

Please note that this section on Indemnification does not apply to consumers located in New Jersey.

You will fully compensate us and our directors, officers, members, managers, employees and agents (that is, you will indemnify and defend us and them, and hold us and them harmless) for any and all claims, liabilities, costs and expenses incurred as a result of a claim made by a third party, including reasonable legal fees costs, arising from your misuse of the Properties or your breach or violation of law or these Terms of Use.

We may, at our own expense, assume the exclusive defense and control of any matter otherwise subject to compensation by you, and in such case, you agree to cooperate with our defense of such claim.

This provision does not require you to indemnify DKC for any unconscionable commercial practice by the third party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Properties.

 

 

AGREEMENT TO ARBITRATE DISPUTES AND CHOICE OF LAW

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.  It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

WE BOTH AGREE TO ARBITRATE:  You and DKC agree to resolve any claims relating to these Terms through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate DKC’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights).  Under such circumstances DKC may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Site, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.

ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS.  Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator.  If there is a conflict between JAMS Rules and the rules set forth in this TOU, the rules set forth in this TOU will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267.  To initiate arbitration, you or DKC must do the following things:

(1)    Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.

(2)    Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111

(3)    Send one copy of the Demand for Arbitration to the other party.

Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs. Arbitration under this agreement shall be held in the United States in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and DKC, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and DKC.

NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and DKC in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND DKC WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.

OPT-OUT OF AGREEMENT TO ARBITRATE: You can decline this agreement to arbitrate by emailing DKC at legal@dkny.com and providing the requested information as follows: (1)Your Name; (2) the URL of Terms of Use; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms of Use.  The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms of Use by using the website.

CHOICE OF LAW/FORUM SELECTION

In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New York, NY.

 

 

DISCLAIMER

PLEASE NOTE THAT THIS SECTION ON DISCLAIMER DOES NOT APPLY TO CONSUMERS LOCATED IN NEW JERSEY.

THE PROPERTIES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED AND ALL SUCH WARRANTIES AND CONDITIONS ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

WE MAKE NO WARRANTIES OR CONDITIONS WHATSOEVER REGARDING THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES REGARDING:  INFORMATION AND CONTENT AVAILABLE ON THE PROPERTIES; UPTIME OR UNINTERRUPTED ACCESS TO THE PROPERTIES; TITLE; NON-INFRINGEMENT; MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

WE DO NOT WARRANT THAT THE PROPERTIES OR THE SERVICES, CONTENT, FUNCTIONS, OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED.

USING THE INTERNET MAY EXPOSE YOU TO CERTAIN RISKS.  WE ARE NOT RESPONSIBLE FOR ANY VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE PROPERTIES OR FROM DOWNLOADING ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE PROPERTIES.

WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE PROPERTIES IS CORRECT AND UP-TO-DATE, BUT IT MAY NOT BE. WE MAY CHANGE ANY OF THE INFORMATION PROVIDED ON THE PROPERTIES AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE WILL NOT BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE PROPERTIES.

THE FOREGOING EXCLUSIONS OF EXPRESS AND IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LOCAL LAWS. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.

 

LIMITATION OF LIABILITY

PLEASE NOTE THAT THIS SECTION ON LIMITATION OF LIABILITY DOES NOT APPLY TO CONSUMERS LOCATED IN NEW JERSEY.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, NEITHER DKC NOR OUR AFFILIATES, NOR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO THE PROPERTIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, WHERE NEGLIGENCE SUPPLIES THE STANDARD OF CULPABILITY) ARISING FROM THE TERMS OF USE OR YOUR USE OF THE PROPERTIES EXCEED ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.

NOTWITHSTANDING THE FOREGOING, THESE LIMITATIONS OF LIABILITY, DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.

APPLICABLE LAWS

We and our service providers control and operate the Properties from the United States of America. We do not represent that materials on the Properties are appropriate or available for use in locations outside of the United States of America. Persons who choose to access the Properties from locations outside of the United States of America do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. All parties to these Terms of Use waive their respective rights to a trial by jury. 

 


MISCELLANEOUS

 

Our failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use 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 Terms of Use shall remain in full force and effect.  All rights not expressly granted herein are reserved. 

Certain functionalities available on the Site may be covered by U.S. Patent No. 5,930,474.

We reserve the right to refuse service and/or terminate access to the Properties without prior notice for any user who violates these policies.

 

Effective Date: September 12, 2016

 

 

TERMS OF SALE

 

PLEASE READ THESE TERMS OF SALE (THE “TERMS OF SALE”) CAREFULLY BEFORE PLACING AN ORDER WITH US FOR A PURCHASE OF A PRODUCT OR SERVICE.  These Terms of Sale incorporate by reference the Terms of Use and Privacy Policy, and any capitalized terms in those agreements shall have the same meaning here.

 

ORDERS FOR PRODUCTS AND SERVICES

We may make certain products available for sale to visitors and registrants of the Properties. If you are a visitor based in the EU, the products are made available to you from our third-party fulfilment partner, Borderfree, Inc., 292 Madison Avenue, Fifth Floor, New York, New York 10017, +1-212-299-3500 (“Borderfree”).  If you purchase any products from Borderfree, the contract for their purchase will be between you and Borderfree and not between you and DKC.

 

You may only order products if you are 18 years old or older.  If you place an order, you promise that you are 18 years old or older. 

 

You agree to pay in full the prices for any purchases at the time of your online order by using any payment means acceptable to DKC or Borderfree, as applicable. You agree to pay all applicable taxes. If payment is not received by us or Borderfree from your credit or debit card issuer or its agents, you agree to pay all amounts due upon demand by us or Borderfree.

 

You accept and agree that your use of the Properties and your use of Borderfree are for your personal use only.

 

 

PRODUCT INFORMATION

We have made every effort to display our products and their colors as accurately as possible. However, the displayed colors of the products will depend upon the technical specifications and settings of the computer and monitor of the user, and we do not guarantee that the actual colors of the products will be accurately displayed on the user’s monitor. Products displayed may be out-of-stock, discontinued or otherwise unavailable, and prices are subject to change. We are not responsible for typographical errors regarding price or any other matter. 

 

 

RETURNS OF PRODUCTS

You may cancel your order and/or return the products you purchased from the Site in accordance with our Returns/Exchanges policy, which is incorporated herein by reference for all purposes. A copy of our Returns/Exchanges policy is available on the Site.

 

Updated September 12, 2016.