1.
INTRODUCTION
Welcome and thank you
for visiting our internet site (the “Site”), which is operated by Tropical
Designs of Florida, Inc. (“Tropical Designs”).
PLEASE READ THESE
TERMS OF USE CAREFULLY BEFORE USING ANY TROPICAL DESIGNS SITE.
By using any Tropical Designs Site or by clicking a box that states that you
accept or agree to these terms, you signify your agreement to these terms of
use. If you do not agree to these terms of use, you may not use the Tropical
Designs Sites.
Note that special
terms apply to some services offered on certain Tropical Designs Sites, like
subscription-based services, rules for particular contests or sweepstakes or
other features or activities. These terms are posted in connection with the
applicable service. Any such terms are in addition to these terms of use, and
in the event of a conflict, prevail over these terms of use.
You acknowledge that
these terms of use are supported by reasonable and valuable consideration, the
receipt and adequacy of which are hereby acknowledged. Without limiting the
generality of the foregoing, you acknowledge that such consideration includes
your use of the Tropical Designs Sites and receipt of data, materials and
information available at or through the Tropical Designs Sites, the possibility
of our use or display of your Solicited Submissions (as defined below in
Section 3, entitled "SUBMISSIONS") and the possibility of the
publicity and promotion from our use or display of your Solicited Submissions.
2.
USE OF CONTENT
All information,
materials, functions and other content (including Submissions, as defined in
Section 3, entitled "SUBMISSIONS") ("Content")
contained on Tropical Designs Sites are our copyrighted property or the
copyrighted property of Tropical Designs, our licensors and/or licensees. All
trademarks, service marks, trade names, and trade dress are proprietary to us
and/or our licensors or licensees. We may change the Tropical Designs Sites or
delete Content or features at any time, in any way, for any or no reason.
Except as we
specifically agree in writing, no Content from any Tropical Designs Site may be
used, reproduced, transmitted, distributed or otherwise exploited in any way
other than as part of the Tropical Designs Site, except that where a Tropical
Designs Site is configured to enable the download of particular Content, you
may download one copy of such Content to a single computer for your personal,
noncommercial home use only, provided that you (a) keep intact all copyright
and other proprietary notices, (b) make no modifications to the Content, and
(c) do not use the Content in a manner that suggests an association with any of
our products, services or brands. Any business use, "re-mailing" or
high-volume or automated use of Tropical Designs Sites is prohibited.
In the event that we
offer downloads of software on a Tropical Designs Site and you download such
software, the software, including any files, images incorporated in or
generated by the software, and data accompanying the software (collectively, the
"Software") are licensed to you by us or third-party licensors
for your personal, noncommercial home use only. We do not transfer title to the
Software to you. You may not distribute or otherwise exploit the Software or
decompile, reverse engineer, disassemble or otherwise reduce the Software to a
human-readable form.
3.
SUBMISSIONS
In these terms of
use, we use the word "Submissions" to mean content, text,
messages, ideas, articles, concepts, methods, suggestions, stories, treatments,
formats, artwork, photographs, drawings, videos, audiovisual works, musical
compositions (including lyrics), sound recordings, characterizations, your
and/or other persons' names, likenesses, voices, usernames, profiles, actions,
appearances, performances and/or other biographical information or material,
and/or other similar materials that you submit, post, upload, embed, display,
communicate or otherwise distribute (collectively, "Distribute")
on or through a Tropical Designs Site.
There are two types
of Submissions: Solicited Submissions and Unsolicited Submissions. "Solicited
Submissions" means those Submissions (a) that we expressly request or
enable you to provide to us via any feature or activity on a Tropical Designs
Site for our review or display.
"Unsolicited Submissions" are any and all Submissions
that do not fall within subparagraphs (a) or (b) of this paragraph.
DO NOT DISTRIBUTE ANY
UNSOLICITED SUBMISSIONS; NO IMPLIED CONTRACT.
You agree that any
Submissions you make is not being made in confidence or trust and that no
confidential or fiduciary relationship is intended or created between you and
us in any way, and that you have no expectation of any review, compensation or
consideration of any type (other than any stated Consideration).
Except as expressly
stated in these terms of use, the provisions of these terms of use apply
equally to Unsolicited Submissions and Solicited Submissions. Accordingly, we,
our licensees, distributors, agents, representatives and other authorized users
shall be entitled to exploit and disclose all Submissions, and we shall not be
liable to you or to any person claiming through you for any exploitation or
disclosure of any Submission.
4.
LICENSES AND REPRESENTATIONS
You hereby grant us
and our licensees, distributors, agents, representatives and other authorized
users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free,
sub-licensable and transferable (in whole or part) worldwide license under all
copyrights, trademarks, patents, trade secrets, privacy and publicity rights
and other intellectual property rights you own or control to use, reproduce,
transmit, display, exhibit, distribute, index, comment on, modify (including
removing lyrics and music from any Submission or substituting the lyrics and
music in any Submission with music and lyrics selected by us), create
derivative works based upon, perform and otherwise exploit such Submissions, in
whole or in part, in all media formats and channels now known or hereafter
devised (including on Tropical Designs Sites, on third party web sites, on our
broadcast and cable networks and stations, on our broadband and wireless
platforms, products and services, on physical media, and in theatrical release)
for any and all purposes including entertainment, news, advertising, promotional,
marketing, publicity, trade or commercial purposes, all without further notice
to you, with or without attribution, and without the requirement of any
permission from or payment to you or to any other person or entity (the "Submissions
License").
By communicating a
Submission, you represent and warrant that the Submission and your
communication thereof conform to the Rules of Conduct (set forth below in
Section 7 labeled "RULES OF CONDUCT")) and other requirements of
these terms of use and that you own or have the necessary rights, licenses,
consents and permissions, without the need for any permission from or payment
to any other person or entity, to exploit, and to authorize us to exploit, such
Submission in all manners contemplated by these terms of use (including the
Submissions License). These terms of use (including the Submissions License) do
not limit any past or future grant of rights, consents, agreements, assignments
and waivers you may have made or make with respect to Submissions.
To the extent any
"moral rights," "ancillary rights," or similar rights in or
to the Submissions exist and are not exclusively owned by us, you agree not to
enforce any such rights as to us or our licensees, distributors, agents,
representatives and other authorized users, and you shall procure the same
agreement not to enforce from any others who may possess such rights.
Without limiting the
scope of the Submissions License or any future grant of rights, consents,
agreements, assignments, and waivers you may make with respect to Submissions,
you hereby ratify any prior grant of rights, consents, agreements, assignments
and waivers made by you with respect to Submissions submitted by you to us.
5.
ACCOUNTS
Some services on the Tropical
Designs Sites permit or require you to create an account to participate or to
secure additional benefits or make online purchases. You agree to provide,
maintain and update true, accurate, current and complete information about
yourself as prompted by our registration processes (the "Registration
Data"). You shall not impersonate any person or entity or misrepresent
your identity or affiliation with any person or entity, including using another
person's username, password or other account information, or another person's
name, likeness, voice, image or photograph. You also agree to promptly notify
us at info@tropicaldesigns.com of
any unauthorized use of your username, password, other account information, or
any other breach of security that you become aware of involving or relating to
any Tropical Designs Site. In addition, you agree to exit from your account at
the end of each session.
We may suspend or
terminate your account and your ability to use any Tropical Designs Site or
portion thereof for failure to comply with these terms of use or any special
terms related to a particular service, for infringing copyright, or for any
other reason whatsoever.
6.
PUBLIC FORUMS AND COMMUNICATION
"Public Forum"
means an area, site or feature which may be offered as part of any Tropical
Designs Site that offers the opportunity for users to Distribute Submissions
for viewing by one or more Tropical Designs Site users, including a chat area,
message board, instant messaging, mobile messaging, social community
environment, profile page, conversation page, blog, e-mail function (including
electronic greeting cards and send-a-friend e-mails).
You acknowledge that
in the event we offer and you visit any such Public Forums and features offered
therein are for public and not private communications, and you have no
expectation of privacy with regard to any Submission to a public Forum. We
cannot guarantee the security of any information you disclose through any of
these media; you make such disclosures at your own risk.
You are and shall
remain solely responsible for the Submissions you Distribute on or through any Tropical
Designs Site under your username or otherwise by you in any Public Forum and
for the consequences of submitting and posting same. We have no duty to monitor
any Public Forum.
Also, you should be
skeptical about information provided by others, and you acknowledge that the
use of any Submission posted in any Public Forum is at your own risk. For
example, we are not responsible for, and we do not endorse, the opinions,
advice or recommendations posted or sent by users in any Public Forum and we
specifically disclaim any and all liability in connection therewith.
We owe you no
obligation, and therefore may refuse, to post, deliver, remove, modify or
otherwise use or take any action with respect to Submissions you Distribute.
7.
RULES OF CONDUCT
The following Rules
of Conduct apply to the Tropical Designs Sites. By using the Tropical Designs
Sites, you agree that you will not Distribute any Submission that:
1.
(a) is defamatory, abusive, harassing,
threatening, or an invasion of a right of privacy of another person; (b) is
bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar,
obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or
can reasonably be expected to harm any person or entity;
2.
is illegal or encourages or advocates
illegal activity or the discussion of illegal activities with the intent to
commit them, including a Submission that is, or represents an attempt to engage
in, child pornography, stalking, sexual assault, fraud, trafficking in obscene
or stolen material, drug dealing and/or drug abuse, harassment, theft, or
conspiracy to commit any criminal activity;
3.
infringes or violates any right of a
third party including: (a) copyright, patent, trademark, trade secret or other
proprietary or contractual rights; (b) right of privacy (specifically, you must
not distribute another person's personal information of any kind without their
express permission) or publicity; or (c) any confidentiality obligation;
4.
is commercial, business-related or
advertises or offers to sell any products, services or otherwise (whether or
not for profit), or solicits others (including solicitations for contributions
or donations);
5.
contains a virus or other harmful
component, or otherwise tampers with, impairs or damages the Tropical Designs
Sites or any connected network, or otherwise interferes with any person or
entity's use or enjoyment of the Tropical Designs Sites; or
6.
(a) does not generally pertain to the
designated topic or theme of the relevant Public Forum; (b) violates any
specific restrictions applicable to a Public Forum, including its age
restrictions and procedures; or (c) is antisocial, disruptive, or destructive,
including "flaming," "spamming," "flooding,"
"trolling," and "griefing" as those terms are commonly
understood and used on the Internet.
We cannot and do not
assure that other users are or will be complying with the foregoing Rules of
Conduct or any other provisions of these terms of use, and, as between you and
us, you hereby assume all risk of harm or injury resulting from any such lack
of compliance.
8.
COOPERATION; REMOVAL OF
SUBMISSIONS
We reserve the right,
but disclaim any obligation or responsibility, to (a) refuse to post or
communicate or remove any Submission from any Tropical Designs Site that
violates these terms of use (including the Rules of Conduct) and (b) identify
any user to third parties, and/or disclose to third parties any Submission or
personally identifiable information, when we believe in good faith that such
identification or disclosure will either (i) facilitate compliance with laws,
including, for example, compliance with a court order or subpoena, or (ii) help
to enforce these terms of use (including the Rules of Conduct) and/or our
contest, sweepstakes, promotions, and game rules, and/or protect the safety or
security of any person or property, including any Tropical Designs Site.
Moreover, we retain all rights to remove Submissions at any time for any reason
or no reason whatsoever.
9.
CONTENT ACCESSIBLE THROUGH LINKS
FROM TROPICAL DESIGN SITES AND SEARCH RESULTS
You should be aware
that when you are on a Tropical Designs Site, there are links to other sites
that take you outside of our service to sites that are beyond our control, such
as banner advertisements and links from advertisers, sponsors and content
partners that may use our logo(s) as part of a co-branding relationship. You
acknowledge that when you click on any of the aforementioned links, the sites
you are taken to are not controlled by us; different terms of use and privacy
policy may apply, and we are not responsible for such sites. We do not endorse
and cannot ensure that you will be satisfied with any products or services that
you purchase from a third-party site that links to or from any Tropical Designs
Site or third-party Content contained on our sites. We strongly encourage you
to make whatever investigation you feel necessary or appropriate before proceeding
with any online or offline transaction with any third parties.
Nor can we be held
responsible for the accuracy, relevance, legality or decency of material
contained on sites retrieved in searches and/or listed in search results or
identified on search results pages.
10.
DISCLAIMERS
THE CONTENT ON OR
OTHERWISE RELATED IN ANY WAY TO TROPICAL DESIGNS SITES OR ANY THIRD PARTY SITES
OR SERVICES LINKED TO FROM ANY TROPICAL DESIGNS SITE IS PROVIDED "AS
IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE
PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND
NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT
ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT
ANY TROPICAL DESIGNS SITE OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE
COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR
MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY
CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO
CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD
AND OTHER PERSONAL INFORMATION).
Furthermore, the
Content is not intended to be a substitute for professional medical advice.
Always seek the advice of your physician with any questions you may have
regarding a medical condition. If you think you may have a medical emergency,
call your doctor or 911 immediately. Reliance on any information appearing on a
Tropical Designs Site is strictly at your own risk.
Tropical Designs Sites
may contain the opinions and views of other users. Given the interactive nature
of these sites, we cannot endorse, guarantee, or be responsible for the
accuracy, efficacy, or veracity of any content generated by our users.
The content of Tropical
Designs Sites are intended for educational and entertainment purposes only.
Such content is not intended to, and do not, constitute legal, professional, scientific,
medical or healthcare advice or diagnosis, and may not be used for such
purposes. Always seek the advice of your physician or other qualified health
provider with any questions you may have regarding a medical condition. You
should not act or refrain from acting on the basis of any content included in,
or accessible through, the Tropical Designs Sites without seeking the
appropriate legal or other professional advice on the particular facts and
circumstances at issue from a lawyer or professional licensed in the
recipient's state, country or other appropriate licensing jurisdiction.
11.
INDEMNIFICATION
You are responsible
for maintaining the confidentiality of your username(s), password(s), and your
account(s), as well as all activities that occur under your account(s). You
hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors,
agents, representatives and other authorized users, and each of the foregoing
entities' respective resellers, distributors, service providers and suppliers,
and all of the foregoing entities' respective officers, directors, owners,
employees, agents, representatives and assigns (collectively, the "Indemnified
Parties") harmless from and against any and all losses, damages,
liabilities and costs (including settlement costs and any legal or other fees
and expenses for investigating or defending any actions or threatened actions)
incurred by the Indemnified Parties in connection with any claim arising out of
any breach by you of these terms of use or claims arising from your use of the Tropical
Designs Sites and/or your account(s). You shall use your best efforts to
cooperate with us in the defense of any claim. We reserve the right, at our own
expense, to employ separate counsel and assume the exclusive defense and
control of any matter otherwise subject to indemnification by you.
12.
LIMITATION OF LIABILITY
UNDER NO
CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE, OUR LICENSORS OR LICENSEES, OR
ANY OF THE FOREGOING ENTITIES' RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE
PROVIDERS OR SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST
PROFITS, PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE OF ANY NATURE
WHATSOEVER, THAT RESULT FROM (A) THE USE OF, OR THE INABILITY TO USE, ANY
TROPICAL DESIGNS SITE OR CONTENT, OR (B) THE CONDUCT OR ACTIONS, WHETHER ONLINE
OR OFFLINE, OF ANY USER OF A TROPICAL DESIGNS SITE OR ANY OTHER PERSON OR
ENTITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF
ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE
AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING OR
PARTICIPATING IN ANY ACTIVITY RELATED TO ANY TROPICAL DESIGNS SITE. MOREOVER,
UNDER NO CIRCUMSTANCES SHALL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE
FOREGOING ENTITIES' RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR
SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING
DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR
THEIR REASONABLE CONTROL.
WE MAY TERMINATE YOUR
FURTHER ACCESS TO TROPICAL DESIGNS SITES OR CHANGE THE TROPICAL DESIGNS SITES
OR DELETE CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO
REASON.
THE LIMITATIONS,
EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE
APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13.
JURISDICTIONAL AND VENUE ISSUES
You agree that any
action at law or in equity arising out of or relating to these terms of use or
the Tropical Designs Sites shall be filed, and that venue properly lies, only
in state or federal courts located in Miami-Dade County, State of Florida,
United States of America, and you hereby consent and submit to the personal jurisdiction
of such courts for the purposes of litigating any such action. We make no
representation that Content on any Tropical Designs Site is appropriate or
available for use in any particular location. Those who choose to access a Tropical
Designs Site do so on their own initiative and are responsible for compliance
with all applicable laws including any applicable local laws.
14.
AMENDMENT
At any time, we may
amend these terms of use (including by modification, deletion and/or addition
of any portion thereof). Any such amendment to these terms of use will be
effective thirty (30) calendar days following either our dispatch of an e-mail
notice to you or our posting of notice of the changes on the Web Sites. Please
note that, at all times, you are responsible for updating your personal
information to provide us your current e-mail address. In the event that the
last e-mail address that you have provided us is not valid, or for any other
reason is not capable of delivering to you the notice described above, our
dispatch of the e-mail containing such notice will nonetheless constitute
effective notice of any amendment described in the notice.
15.
GENERAL PROVISIONS
These terms of use
shall be governed by and construed in accordance with the laws of the State of Florida
and the laws of the United States, without giving effect to any principles of
conflicts of law. If any provision of these terms of use shall be unlawful,
void or for any reason unenforceable, then that provision shall be deemed
severable from these terms of use and shall not affect the validity and
enforceability of any remaining provisions. No waiver of any provision of these
terms of use by us shall be deemed a further or continuing waiver of such
provision or any other provision, and our failure to assert any right or
provision under these terms of use shall not constitute a waiver of such right
or provision. In these terms of use, the word "including" is used
illustratively, as if followed by the words "but not limited to." YOU
AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE
TERMS OF USE OR ANY TROPICAL DESIGNS SITE MUST COMMENCE WITHIN ONE (1) YEAR
AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE
PERMANENTLY BARRED.
Supply of goods, services
and software through Tropical Designs Sites is subject to United States export
control and economic sanctions requirements. By acquiring any such items
through Tropical Designs Sites, you represent and warrant that your acquisition
comports with and your use of the item will comport with those requirements.
Without limiting the foregoing, you may not acquire goods, services or software
through Tropical Designs Sites if: 1) you are in, under the control of, or a
national or resident of Cuba, Iran, North Korea, Sudan or Syria or if you are
on the U.S. Treasury Department's Specially Designated Nationals List or the
U.S. Commerce Department's Denied Persons List, Unverified List or Entity List
or 2) you intend to supply the acquired goods, services or software to Cuba,
Iran, North Korea, Sudan or Syria (or a national or resident of one of these
countries) or to a person on the Specially Designated Nationals List, Denied
Persons List, Unverified List or Entity List.
16.
CLAIMS OF COPYRIGHT INFRINGEMENT
We have adopted and
implemented a policy that provides for the termination, in appropriate
circumstances as determined by us in our sole discretion, of users who are
infringers of copyright.
Pursuant to Title 17,
United States Code, Section 512(c)(2), notifications of claimed copyright
infringement must be sent to Service Provider's Designated Agent.
Notification must be
submitted to the following Designated Agent: Service Provider: Tropical Designs
Name of Agent
Designated to Receive Notification of Claimed Infringement: info@tropicaldesigns.com