Terms of USe
 

Please read these Terms of Use (the "Agreement") carefully. Your use of the Distressed Design website (as defined below) constitutes your consent to this Agreement.

This Agreement is between you and Distressed Design, Inc. (“D2” or "we") concerning your use of (including any access to) the websites currently located at https://www.distresseddesign.org and any other websites that we own and control and which contain a link to this Agreement (together with any materials and services available therein, and successor site(s) thereto, the "Sites"), and any mobile software applications that we own and control and which contain a link to this Agreement (together with any materials and services available therein, and successor applications(s) thereto, the "Apps"). The Sites and Apps are referred to collectively in this Agreement as the "D2 Online Properties".

This Agreement hereby incorporates by this reference any additional terms and conditions posted by D2 through the D2 Online Properties, or otherwise made available to you by D2. Your use of the D2 Online Properties is governed by this Agreement regardless of how you access the D2 Online Properties, including through the Internet, through Wireless Access Protocol (commonly referred to as "WAP"), through a mobile network or otherwise.

BY USING THE D2 ONLINE PROPERTIES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT. IF YOU ARE USING THE D2 ONLINE PROPERTIES ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, THEN YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT.

THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 18 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.

1. Changes. We may change this Agreement by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the D2 Online Properties. Any such changes will become effective on the "Last Updated" date indicated above and such changes will not apply to any dispute between you and us arising prior to such date on which the revised Agreement incorporating such changes became effective, or otherwise notified you of such changes.

Your use of the D2 Online Properties following any changes to this Agreement will constitute your acceptance of such changes. The "Last Updated" legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the D2 Online Properties (including access via any third-party links); charge, modify or waive any fees required to use the D2 Online Properties; or offer opportunities to some or all users.

2. Important Note to New Jersey Consumers. If you are a consumer residing in New Jersey, the following provisions of this Terms of Use do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) in Section 15 below, the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act; (b) in Section 15 below, the limitation on liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) in Section 15 below, application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act; (d) in Section 16 below, the requirement that you indemnify D2 (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) in Section 18 below, the New York governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).

3. Information Submitted Through the D2 Online Properties. Your submission of information through the D2 Online Properties is governed by D2's Privacy Policy, located at https://www.distresseddesign.org/privacy-policy (the "Privacy Policy"). You represent and warrant that any information you provide in connection with the D2 Online Properties is and will remain accurate and complete, and that you will maintain and update such information as needed.

4. Jurisdictional Issues. The D2 Online Properties are controlled or operated (or both) from the United States, and are not intended to subject D2 to any non-U.S. jurisdiction or law. The D2 Online Properties may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the D2 Online Properties is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the D2 Online Properties' availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.

5. Products. The D2 Online Properties may make available listings, descriptions and images of goods or services or related coupons or discounts (collectively, "Products"), as well as references and links to Products. Such Products may be made available by D2 or by third parties. The availability through the D2 Online Properties of any listing, description or image of a third-party Product does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product (including the validity of any coupon or discount) is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.

6. Transactions. We may make available the ability to purchase or otherwise obtain certain Products through the D2 Online Properties or through other sales channels such as telephone orders, mail orders or our physical stores (a "Transaction"). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information ("Payment Information"). YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY CREDIT CARD THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You agree to pay all charges incurred by you or on your behalf through the D2 Online Properties, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.

We and our third party payment service providers may request, and may receive from any of your payment card issuers or any payment card network, updated payment card information, such as cancellation of any payment card account, or updated payment card numbers or expiration dates. If such updated information is provided to us and/or any of our third party payment service providers, we may use that information to process any payment that you have authorized us to charge to such payment card, including payment for any outstanding balances owed by you on any purchase. By using the D2 Online Properties and accepting this Agreement, you hereby authorize D2 and its third party payment service providers to update your payment card information and charge your payment card using any such updated payment card information. Your payment card issuer may allow you to opt out of providing updated card information. For more information, please contact your payment card issuer.

Restrictions. D2 reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any Transaction; to cancel any Transaction even after it has been placed on line through the D2 Online Properties, via customer service, in a Gallery, and/or in an Outlet, and to refuse to provide any user with any Product. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner. You agree that you will not resell any products or services obtained through a Transaction, unless we have provided our express prior written consent for you to do so.

Consent Agreement for Storing Payment Information. You agree that we may store your Payment Information following your completion of a Transaction. We will only use Payment Information to finalize complete payment for any Product purchased online though the D2 Online Properties, via customer service, in a Gallery, and/or in an Outlet and/or to facilitate future Transactions you may initiate through the D2 Online Properties. You may withdraw your consent permitting D2 to store your Payment Information by adjusting your settings in "My Account". Any changes to the terms of this consent permitting D2 to store your Payment Information will be communicated to you as described in Section 1 of this Agreement.

Refunds & Exchanges. Refunds and exchanges will be subject to D2's applicable refund and exchange policies. The refund and exchange policy for Transactions made through distresseddesign.org is available at https://www.distresseddesign.org/shipping-returns.

In the event that you have received a refund, an exchange and/or a temporary replacement Product for Product purchased through an D2 Site, via customer service, in a Gallery, and/or in an Outlet, and you have not returned that Product and/or the temporary replacement Product to us within ten (10) business days after you have received a refund, or you received a refund that was greater than the amount you paid, then you agree that we can hold and not process any pending and/or any future orders from you until we have received the Product or full payment from you. You also agree that if a Product for which you received a refund or exchange, or a temporary replacement Product is not returned to us within ten (10) business days after you are issued a refund, then we may utilize your current or future Payment Information to re-charge you for that Product at any time.

Shipping. D2 offers shipping services subject to D2's applicable shipping policies. The shipping policy for Transactions made through distresseddesign.org is available at https://www.distresseddesign.org/shipping-returns.

Trade Customers; Contract Customers. If you are a trade customer as determined by D2, then, in addition to this Agreement, the Trade Terms & Conditions will apply to you and your Transactions as a trade customer; such additional terms and conditions are generally made available in connection with the registration process for trade customers. If you are a contract customer as determined by D2, then, in addition to this Agreement, the Contract Terms & Conditions will apply to you and your Transactions as a contract customer; such additional terms and conditions are generally made available in connection with the registration process for contract customers.

To the extent of any conflict between the terms and conditions of this Agreement and those of the Trade Terms & Conditions or the Contract Terms & Conditions, those of the Trade Terms & Conditions and the Contract Terms & Conditions will govern.

7. Gift Registries. We may make a gift registry service available to you through the D2 Online Properties. Any gift registry that you create with us (a "Gift Registry") must be for an event involving you or someone who has authorized you to create a Gift Registry on his or her behalf. If a user makes a Transaction using a Gift Registry, we will attempt to update such Gift Registry promptly to reflect such purchases, although we cannot guarantee that we will always be able to do so. We will attempt to keep a Gift Registry accessible for two (2) years after the date of the applicable event, although this time period is subject to change without notice in our discretion.

8. Registration; User Names and Passwords. You may need to register to use all or part of any D2 Online Property. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not D2, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name, password or account for any D2 Online Property.

9. Rules of Conduct. In connection with the D2 Online Properties, you must not:

·       Post, transmit or otherwise make available through or in connection with the D2 Online Properties any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.

·       Post, transmit or otherwise make available through or in connection with the D2 Online Properties any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.

·       Use the D2 Online Properties for any purpose that is fraudulent or otherwise tortious or unlawful.

·       Harvest or collect information about users of the D2 Online Properties.

·       Interfere with or disrupt the operation of the D2 Online Properties or the servers or networks used to make the D2 Online Properties available, including by hacking or defacing any portion of the D2 Online Properties, or violate any requirement, procedure or policy of such servers or networks.

·       Restrict or inhibit any other person from using the D2 Online Properties.

·       Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the D2 Online Properties except as expressly authorized herein, without D2's express prior written consent.

·       Reverse engineer, decompile or disassemble any portion of the D2 Online Properties, except where such restriction is expressly prohibited by applicable law.

·       Remove any copyright, trademark or other proprietary rights notice from the D2 Online Properties.

·       Frame or mirror any portion of the D2 Online Properties, or otherwise incorporate any portion of the D2 Online Properties into any product or service, without D2's express prior written consent.

·       Systematically download and store content of the D2 Online Properties.

·       Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape", "data mine" or otherwise gather content from the D2 Online Properties, or reproduce or circumvent the navigational structure or presentation of the D2 Online Properties, without D2's express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Sites' root directories, D2 grants to the operators of public search engines permission to use spiders to copy materials from the Sites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. D2 reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.

You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the D2 Online Properties.

10. Limited License. Subject to your compliance with this Agreement, and solely for so long as you are permitted by D2 to use the Sites, you may view one (1) copy of any portion of the Sites to which we provide you access hereunder, on any single device, solely for your personal, non-commercial use. The Apps are licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by D2 to use the Apps, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the Apps on a mobile device that you own or control.

11. D2's Proprietary Rights. We and our suppliers own the Sites and Apps, which are protected by proprietary rights and laws. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the Apps and remove (that is, uninstall and delete) the Apps from your mobile device. Our trade names, trademarks and service marks, among others, include D2, DISTRESSED DESIGN, DESIGN DISTRESSED, and any associated logos. All trade names, trademarks, service marks and logos on the D2 Online Properties not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the D2 Online Properties should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.

12. Third Party Materials; Links. Certain functionality of the D2 Online Properties may make available access to materials made available by third parties ("Third Party Materials"), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by D2 with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the D2 Online Properties at any time. In addition, the availability of any Third Party Materials through the D2 Online Properties does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.

YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).

13. Promotions. Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, "Promotions") made available through the D2 Online Properties may be governed by rules that are separate from this Agreement. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with this Agreement, the Promotion rules will govern.

14. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE D2 ONLINE PROPERTIES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) D2 DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE D2 ONLINE PROPERTIES AND ANY PRODUCTS AND THIRD PARTY MATERIALS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. THE PRODUCTS ARE NOT DESIGNED FOR COMMERCIAL USE (SUCH AS USE IN HOTELS, RESTAURANTS OR ANY OTHER PLACE WHERE THE PUBLIC MAY USE A PRODUCT OUTSIDE OF A PRIVATE RESIDENTIAL SETTING), AND, WITHOUT LIMITING ANY OTHER DISCLAIMER HEREIN, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ALL LIABILITY FOR ANY DAMAGES ARISING FROM SUCH COMMERCIAL USE. THIS SECTION 14 DOES NOT AFFECT ANY EXPRESS WARRANTIES THAT WE MAY PROVIDE DIRECTLY TO YOU IN WRITING WITH RESPECT TO PRODUCTS PURCHASED THROUGH THE D2 ONLINE PROPERTIES.

ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH D2 AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE "AFFILIATED ENTITIES").

While we try to maintain the timeliness, integrity, and security of the D2 Online Properties, we do not guarantee that the D2 Online Properties are or will remain updated, complete, correct or secure, or that access to the D2 Online Properties will be uninterrupted. The D2 Online Properties may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the D2 Online Properties. If you become aware of any such alteration, please contact us by visiting https://www.distresseddesign.org/contact and providing a description of such alteration and its location.

15. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: D2 WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION TRANSMITTED VIA THE D2 ONLINE PROPERTIES (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF SUCH INFORMATION), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) D2 WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE D2 ONLINE PROPERTIES OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS; (B) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE D2 ONLINE PROPERTIES OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE D2 ONLINE PROPERTIES; AND (C) THE MAXIMUM AGGREGATE LIABILITY OF D2 FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF: (1) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO D2 TO USE THE D2 ONLINE PROPERTIES; AND (2) TEN U.S. DOLLARS ($10).

ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH D2 AND THE AFFILIATED ENTITIES.

Applicable law in states other than New Jersey may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.

16. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless D2 and the Affiliated Entities from and against all claims, losses, costs and expenses (including attorneys' fees) arising out of (a) your use of, or activities in connection with, any of the D2 Online Properties; and (b) any violation or alleged violation of this Agreement by you.

17. Termination. This Agreement is effective until terminated. D2 may terminate or suspend your use of any or all of the D2 Online Properties at any time and without prior notice, including if D2 believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the D2 Online Properties will immediately cease, and D2 may, without liability to you or any third party, immediately deactivate or delete your user name, password and account(s), and all associated materials, without any obligation to provide any further access to such materials. Sections 2 through 9 and 11 through 24 shall survive any expiration or termination of this Agreement.

18. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of Michigan, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND D2, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT D2 AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief, or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.

19. Filtering. We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers.  Please note that D2 does not endorse any of the products or services listed on such site.

20. Information or Complaints. If you have a question or complaint regarding any of the D2 Online Properties, please contact us by visiting https://www.distresseddesign.org/contact. You may also contact us by writing to D2, Attn: Customer Service, 2041 E Mockingbird Ln, Midland, MI 48642, or by calling us at 989.600.8962. Please note that email communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your email correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

21. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country; or (b) on any of the U.S. government lists of restricted end users.

22. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and D2. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term "including" or variations thereof in this Agreement shall be construed as if followed by the phrase "without limitation". This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and D2 relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and D2 relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the D2 Online Properties or by email (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. D2 will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.

23. California Transparency in Supply Chains Act (SB 657) Disclosure. D2 is providing the following disclosure in compliance with The California Transparency in Supply Chains Act of 2010 (SB 657), which requires that companies disclose their efforts to eradicate slavery and human trafficking from their direct supply chains.

·       Vendor Code of Conduct. D2 requires that vendors certify that they will comply with our Vendor Code of Conduct, which prohibits our vendors from using child labor or involuntary labor. Our Vendor Code of Conduct also requires that vendors conduct their operations in accordance with all laws applicable to their businesses.

·       Monitoring of Compliance. We review the terms of our Vendor Code of Conduct with all of our suppliers and conduct periodic reviews of their facilities in order to confirm that they are in compliance with all required policies.

·       Training. We train our employees who are responsible for procuring products on the importance of confirming that our vendors comply with the Vendor Code of Conduct, including its prohibitions on child labor and involuntary labor. We also train our employees to identify and respond to concerns about labor practices in the supply chain that might arise from time to time.

·       Corrective Action. In the event that a vendor was to violate our Vendor Code of Conduct, we would have the option to terminate our business relationship with that vendor or take other actions with that vendor to remediate any problems that had been identified.

24. Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the Apps that are compatible with the iOS operating system of Apple Inc. ("Apple"). Apple is not a party to this Agreement and does not own and is not responsible for the Apps. Apple is not providing any warranty for the Apps except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the Apps and shall not be responsible for any other claims, losses, liabilities, damages, costs, or expenses with respect to the Apps, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the Apps, including those pertaining to intellectual property rights, must be directed to D2 in accordance with the "Information or Complaints" section above. The license you have been granted herein is limited to a non-transferable license to use the Apps on an Apple-branded product that runs Apple's iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple's App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the Apps, such as your wireless data service agreement. Apple and Apple's subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, D2's right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.

Text MESSAGING Terms and Conditions

Read these Terms and Conditions (this "Agreement") for important information about our text alert services ("D2 text alerts"). THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.

Distressed Design, Inc. or one or more of its affiliates (D2) may offer access to messages pertaining to your orders and product delivery service through D2 or its third party vendors via recurring SMS (Short Message Service) and MMS (Multimedia Message Service) text alerts. Enrollment in text alerts requires a customer to provide his or her own mobile phone number with an area code within the 50 United States or the District of Columbia. By enrolling to receive D2 text alerts, you agree to these terms and conditions, which become effective upon your enrollment.

You acknowledge that text alerts will be sent to the mobile phone number you provide to D2. Such alerts may include limited personal information about your orders and/or product delivery, and whoever has access to the mobile phone or carrier account will also be able to see this information. Once you enroll, the frequency of text alerts we send to you will vary. You will typically receive text alerts when we have information for you about your product delivery or other information regarding your product purchase. D2 does not impose a separate charge for text alerts; however, your mobile carrier’s message and data rates may apply depending on the terms and conditions of your mobile phone contract. You are solely responsible for all message and data charges that you incur. Please contact your mobile service provider about such charges.

You may opt out of D2 order and delivery service text alerts at any time. To stop receiving order and delivery service text alerts, text STOP to 989.600.8962. Texting STOP to 989.600.8962 will opt you out of all future D2 order and delivery service text messages. After you submit a request to unsubscribe, you will receive one final text alert from D2 confirming that you will no longer receive text alerts. No additional order or delivery service text alerts will be sent unless you re-activate your enrollment. For questions about text alerts, text the word Help to 989.600.8962, or contact D2 at 989.600.8962.

The D2 text alert programs are offered on an "as is" basis and: (1) may not be available in all areas or through all wireless carriers at any or all times; and (2) may not continue to work in the event of product, software, coverage or other service changes made by your wireless carrier. D2 may change or discontinue any of its text alert programs without notice or liability to you. D2 and its related companies and each of their respective officers, directors, employees and consultants are not responsible and shall not be liable for any losses or injuries of any kind resulting, directly or indirectly, from any D2 text alert program or from technical failures or delays of any kind. D2 reserves the right to cease delivery of text alerts to any person at any time in its sole discretion. The wireless carriers are not liable for any delayed or undelivered text alerts.

All information collected in connection with our text alert programs is governed by our Privacy Policy.

Dispute Resolution: EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND D2, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT D2 AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online here. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.

With the exception of any of the language above in this Dispute Resolution provision relating to the waiver of class and representative actions, if a court decides that any part of this Dispute Resolution provision is invalid or unenforceable, the other parts of this Dispute Resolution provision shall still apply. If a court decides that any aspect of the language above in this Dispute Resolution provision relating to the waiver of class and representative actions is invalid or unenforceable, then the entirety of this Dispute Resolution provision shall be null and void. The remainder of the Agreement will continue to apply and be unaffected by this severability provision.

Last Updated: 11.27.2023