Terms of Service
Last Updated: February 22, 2021
If required to register to use any aspect of the Stores, you will: (i) provide true, accurate, current and complete information as prompted by the registration page (the “Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You may be required to be logged in to your account and have a valid payment method associated with it. We may suspend or terminate your account and refuse your current or future use of any or all of the Stores for any reason and at any time, including if we have a reasonable belief that information you provide may not meet these standards. You are solely responsible for the security and confidentiality of your password and account and for all activities that occur under your account. You will not share your account information or your user name and password with any third party or permit any third party to log on to the Stores using your account information or use your account information for any Product purchases. You will immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. We may provide Registration Data, user content, usage records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business).
When you use the Stores, or send e-mails, text messages, or other communications from your computer or mobile device to us, you may be communicating with us electronically. You consent to receive electronic communications, such as e-mails or texts, from us, and you may retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
If you submit or post unsolicited content to us (such as a Product review), we will not be obligated to treat your submission as confidential or propriety. You hereby grant The Orchard a perpetual, irrevocable, royalty-free, transferable right and license to use, modify, reproduce, transmit, publish, display, delete, and distribute any content you share with us throughout the world in any media, including text, images and videos you share with us via social media or that you submit in a Product review. We may also use the name and social media name that you use when you share content with us in connection with that content. You will not share anything that contains harmful computer code, references other websites, or is false, misleading, illegal, defamatory, libelous, hateful, racist, biased, threatening, or harassing. You represent and warrant that (i) you own or otherwise control all of the rights to the content that you post; (ii) all content you post is accurate; (iii) our use of the content you post will not infringe any proprietary rights of or cause injury to any person or entity; and (iv) you will indemnify and hold us harmless for all claims resulting from content you provide or post. We may, at your expense, assume the exclusive defense and control of any matter for which you indemnify us. We may monitor and edit or remove any content, but we have no obligation to do so. We take no responsibility and assume no liability for any content you or any third party posts.
You will not, and will not assist, encourage, or enable others to: use any robot, spider, site search/retrieval application, or other automated device, process, or means to access, retrieve, scrape, crawl, or index any portion of the Stores; remove or modify any copyright, trademark, or other intellectual property rights legend that appears on or in any Store; record, process, or mine information about other users; reformat or frame any portion of the Stores; take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our or our provider’s technology infrastructure or otherwise make excessive traffic demands of the Stores; attempt to gain unauthorized access to the Stores, user accounts, computer systems or networks connected to the Stores, through hacking, password mining, or any other means; or use any device, software, or routine that interferes with the proper working of the Stores, or otherwise attempt to interfere with the proper working of any Store. You will not submit any content that is false or defamatory, inaccurate, abusive, vulgar, obscene, profane, hateful, harassing, threatening, or invasive of anyone’s privacy.
PRODUCT INFORMATION AND PURCHASES
We attempt to describe our Products accurately, but we do not warrant that descriptions of Products are accurate, complete, reliable, current, or error-free, and some products may occasionally be mispriced. If the correct price of a Product is higher than the stated price, we will, at our discretion, either contact you for instructions before confirming your order, or cancel your order and notify you of the cancellation. Your order is not confirmed until we send you an e-mail confirming the order. At any time after receipt of your order, we may accept, decline, or place quantity or other limits on your order for any reason. We may impose these limits on a per-person, per-household, per-order, or any other basis. If we reject, limit, or otherwise modify your order, we will attempt to notify you using the email address you provide to us. If we cancel an order or part of an order that we’ve already charged you for, we’ll refund you the full amount of the canceled portion of the order. We may change the pricing and availability of any particular product(s) or service(s) without prior notice at any time. We do not offer refunds in the event of temporary or permanent price drops following the purchase at higher prices. All sales of digital content are final.
You should review our Returns and Cancellation Policies.
Paying for Your Order
We work with third parties to provide certain functionality for the Stores, including payment processing when you purchase a Product. When you put a Product in your cart and check out, you are interacting directly with our third party payment processing partner, and not The Orchard. We do not warrant the offerings of third party providers or assume any responsibility or liability for their actions, services, or content. You should review their privacy notices and conditions of use.
Generally, we’ll charge your payment method when you place your order. You agree to pay all charges, including shipping and handling charges, incurred by users of your credit card or other payment mechanism at the prices in effect when such charges are incurred. You are also responsible for paying all applicable taxes relating to your purchases. If your card issuer provides us with updated information for any card whose information is stored in your account, you authorize us to use the updated information to complete a charge.
The Stores may include links to other websites (each, a “Third-Party Site”). Unless we state otherwise, The Orchard does not own, operate, control, or endorse any information, products, or services on any Third-Party Site. Links to Third-Party Sites and resources are provided for your convenience only. We are not responsible for, and we do not warrant any availability, contents, materials, products, or other information of any Third-Party Sites. Your use of any Third-Party Site is at your own risk and is subject to the terms and conditions of use the applicable Third-Party Site. We accept no responsibility for Third-Party Sites or for any loss or damage that may arise from your use of them.
INTELLECTUAL PROPERTY AND LICENSE
Subject to your compliance with these Terms, we grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to access and make personal and noncommercial use of the Stores. This license does not include any (i) resale or commercial use of any element of the Stores, or its contents; (ii) collection and use of any product listings, descriptions, or prices; (iii) derivative use of any element of any Store or its contents; (iv) downloading, copying, or other use of account information for the benefit of any third party; or (v) use of data mining, robots, or similar data gathering and extraction tools.
We reserve all rights not expressly granted to you in these Terms. No part of any Store may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not use any trademark, logo, or other proprietary information (including images, text, page layout, or form) of The Orchard without our express written consent. You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent. You may use the Stores only as permitted by law. The licenses granted by us terminate if you do not comply with these Terms. We may limit or terminate access to the Stores, remove content and take technical and legal steps to keep users off the Stores, in our sole discretion. All content displayed on or made available through the Stores, such as text, graphics, photographs, images, moving images, sound, and illustrations, is owned by The Orchard or its licensors and is protected by United States and international intellectual property rights laws. We retain sole discretion to determine the content, appearance, design, functionality and all other aspects of the Stores (including the right to re-design, modify, remove and alter the content, appearance, design, navigation, functionality, and other aspects of the Stores and/or any page thereof and any element, aspect, portion or feature thereof, from time to time).
DISCLAIMERS AND LIMITATIONS
You accept the Stores "as-is" and use them at your own risk. Despite the prohibitions below, the Stores may contain inaccurate, inappropriate or potentially offensive content, and we assume no responsibility or liability for such content. To the full extent permissible by law, we expressly disclaim all warranties, representations and conditions, express or implied, including with limitation any implied warranties of merchantability and fitness for a particular purpose.
TO THE FULL EXTENT PERMISSIBLE BY LAW, THE ORCHARD WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY STORE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS, OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY STORE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES.
Please read this section carefully. It affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause will survive termination of these Terms.
Binding Arbitration. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to these Terms and/or your relationship with us or with any subsidiary, parent or affiliate company or companies, contractors, vendors, or agents of ours, including, but not limited to: (i) claims that arose before this or any prior agreement between you and us, or which may hereafter arise; (ii) claims that are the subject of prior, pending, or future purported class action litigation; and (iii) claims that may arise after the termination of these Terms. Any such dispute or claim (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) will be resolved by binding arbitration, except that either of us may take claims to small claims court if they qualify for hearing by such a court.
Arbitration Procedures. For all disputes or claims, whether pursued in court or arbitration, you must first send a written description of your claim by sending us an email at MerchStoreLegal@theOrchard.com to allow us an opportunity to resolve the dispute. You and we each agree to negotiate your claim in good faith. If, after providing us an opportunity to resolve the dispute, your dispute or claim has not been resolved within 60 days, then, and only then, will you have the option to continue to pursue the dispute or claim through binding arbitration or, solely to the extent provided below, in court.
The arbitration of any dispute or claim will be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (as applicable), as modified by these Terms. The AAA Rules and information about arbitration and fees are available online at www.adr.org. You and we agree that these Terms evidence a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law. Any arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce these Terms as a court would. Any arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
Costs of Arbitration. Upon filing of the arbitration demand, we will pay all filing, administration and arbitrator fees other than the initial $200 filing fee, and for claims of less than $1,000, we will reimburse you for the filing fee within 30 days of receiving a written request from you. Each party will bear the fees and expense of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. However, for claims under $10,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, we agree not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law.
Class Action Waiver and Jury Waiver. You and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated, or representative action. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, the arbitration agreement will be void as to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
You agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of New York, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and The Orchard. To the extent any dispute between us is allowed to proceed in court notwithstanding the arbitration agreement in these Terms, you consent to exclusive jurisdiction in the state and federal courts located in the Borough of Manhattan in the City of New York in the State of New York. A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. We may assign these Terms or any of our rights or duties under them in our sole discretion. Headings are for convenience only and have no interpretive value. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Any provision that must survive in order to give proper effect to its intent (such as limitations on liability, disclaimers, representations and warranties) will survive the expiration or termination of these Terms. We reserve the right to make changes to the Stores, Policies, and these Terms at any time. If we make changes to these Terms, we will post a notice of the changes. If you do not agree to any changes, you should terminate your account and stop using the Stores. Your continued use of the Stores following any changes to the Terms constitutes your acceptance of the updated Terms. These Terms, the Policies, and all updates and amendments, collectively, constitute the entire agreement between us and you with respect to your use of the Stores, and your purchase of Products through the Stores.
Notice and Procedure for Making Copyright Infringement Claims
If you believe any content available through the Stores infringes your copyright, you may notify us using the notice procedure for claimed infringement under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. Sect. 512(c)(2)). We respond quickly to the concerns of rights owners about any alleged infringement, and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content.
You may submit written claims of copyright infringement to our copyright agent at:
c/o Copyright Agent
Orchard Enterprises NY, Inc.
23 East 4th Street
New York, New York 10003
Written claims of copyright infringement must include the following information:
- A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located on the applicable Store;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.