Last revised on: July 8, 2020
- You acknowledge that we will use information we obtain about you in connection with your access to and use of the Magazine Services in accordance with our Privacy Notice.
- If you purchase a digital membership and/or subscription products (referred below as a Digital Membership Product), additional terms apply, including regarding the auto-renewal of your membership or subscription.
- If you purchase a print subscription, additional terms regarding the auto-renewal and continuous service of your subscription (“Continuous Service Program”) apply.
- You are responsible for maintaining the accuracy of any information you submit to us in relation to your access to and use of the Magazine Services.
- You are solely responsible for any user content you provide to us.
Intellectual and Other Proprietary Rights
- Your access and use of the Magazine Services and Content is for personal and noncommercial purposes only.
- As between Posh Kids and you, Posh Kids owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, patents and all other intellectual and proprietary rights throughout the world associated with the Magazine Services and Content except, if applicable, with respect to your User Content.
- You may not build a business, in whole or in part, resell, redistribute, recirculate or make any other commercial use of, or create derivative works or materials utilizing any portion of the Magazine Services (including any code used in any software) or Content, whether or not for profit.
- If we become aware that any of our users has repeatedly infringed the proprietary rights of any third party, we may take steps to terminate that user’s access to the Magazine Services. We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion.
Release, Indemnity, Disclaimers and Limitation of Liability
- Posh Kids disclaims any warranties and provides the Magazine Services “as is”.
- Posh Kids is not responsible for any links to third-party websites, apps or other services, including social media platforms.
- We participate in affiliate marketing and may allow third-party affiliate links to be encoded on some of our Magazine Services. This means that we may earn a commission when you click on or make purchases via third-party affiliate links.
- Your continued use of the Magazine Services will be deemed as irrevocable acceptance of any revisions.
Governing Law and Severability
Last revised on: July 8, 2020
1. Application and Acceptance of this Agreement
The Magazine Services and Content are for general information, discussion and entertainment purposes only. The term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts, articles, comments, software, scripts, graphics and interactive features generated, provided, or otherwise made available through or in connection with the Magazine Services. We make no representations or guarantees about any aspect of the Magazine Services and Content and do not endorse any opinions expressed by any users. THE MAGAZINE SERVICES AND ALL CONTENT ARE PUBLISHED “AS IS” AND YOUR USE OR RELIANCE ON THE MAGAZINE SERVICES OR ANY CONTENT IS AT YOUR OWN RISK. WE HAVE NO LIABILITY TO YOU FOR THE CONSEQUENCES OF USING OR RELYING ON THE MAGAZINE SERVICES OR ANY CONTENT.
2. Privacy Notice
In connection with your access to or use of the Magazine Services, we may obtain information from or about you. We will use your information in accordance with our Privacy Notice, which describes our privacy practices as well as choices you may have with respect to the collection and processing of some of your information. Please take a moment to review our Privacy Notice. The Privacy Notice is incorporated into this Agreement and forms part of the Agreement.
3. Accuracy of Your Information & Communication Methods
The information you submit to us through the Magazine Services, including as part of your account creation, registration or membership, must be truthful, accurate and current. You are responsible for maintaining the accuracy of such information. If we believe that your information is not truthful, accurate or current, we have the right to terminate, suspend or refuse you access to the Magazine Services.
We may send you information relating to your use of the Magazine Services (e.g., payment authorizations, invoices, changes in password or payment method, confirmation messages, notices) in electronic form only, for example via emails to your email address provided during registration, if applicable. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
4. Age Eligibility and Legal Capacity
The Magazine Services are not intended for access or use by children, especially those under the age of 13. If you are under the age of 13, you may not access or use the Magazine Services or provide information to us.
By accessing or using the Magazine Services, you represent that you have legal capacity to enter into this Agreement and to fulfill your obligations set out in this Agreement. If you are not of an age old enough to enter into contracts in your state (i.e., a minor), you need to review this Agreement with your parent or guardian before using the Magazine Services; if your parent or guardian do not agree with the Agreement as applied to you, then you are not authorized to access or use the Magazine Services.
5. Username, Password and Other Credentials
You are responsible for maintaining the confidentiality of your username, password and other credentials (your “Credentials”) that you may be asked to create to access the Magazine Services or certain features or portions thereof. We are not responsible for any misuse of your Credentials by any third party, whether authorized by you or not. You agree to immediately notify Posh Kids of any actual or suspected unauthorized use of your Credentials or any other breach of security. We are not responsible or liable for any loss or damage resulting from unauthorized use of your Credentials or for your failure to follow the requirements set out in this Agreement.
6. Intellectual and Other Proprietary Rights
Your access and use of the Magazine Services and Content is for personal and noncommercial purposes only. The rights granted to you in this Agreement are subject to the following restrictions:
- The Magazine Services include Content that is derived in whole or in part from content or materials supplied and owned by Posh Kids, Posh Kids’s licensors or third parties. As between Posh Kids and you, Posh Kids owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, patents and all other intellectual and proprietary rights throughout the world associated with the Magazine Services and Content except, if applicable, with respect to your User Content (as defined below).
- You acknowledge Posh Kids’s valid intellectual and proprietary property rights in the Magazine Services and Content and that your use of the Magazine Services is limited to accessing, viewing and downloading of the Magazine Services and Content, as authorized by Posh Kids. Nothing in this Agreement shall be deemed to convey to you any right, title or interest into such intellectual and proprietary property rights or to the Magazine Services or Content, or to any portion thereof, except for the limited rights expressly granted herein.
- You may not either directly or through the use of any computer, tablet, phone or other device (each a “Device”) or other means (including the use of a browser, software, program or code), remove, alter, interfere with or circumvent (i) any copyright, trademark, or other proprietary notices marked on the Magazine Services or Content, or (ii) any digital rights management mechanism, device, or other content protection or access control measure associated with the Magazine Services or Content. You may not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Magazine Services (including any code used in any software) or Content.
- You may not either directly or through the use of a Device or other means copy, download, stream, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Magazine Services or Content unless expressly permitted by Posh Kids in writing. You may not incorporate the Magazine Services or Content into, or stream or retransmit the Magazine Services or Content via, any hardware or software application or make the Magazine Services or any Content available via frames or in-line links, and you may not otherwise surround or obfuscate the Magazine Services or Content with any third-party content, materials or branding. You may also not use any software robots, spider, crawlers, or other data gathering or extraction tools, whether automated or manual, to access, acquire, copy, monitor, scrape or aggregate the Magazine Services, Content or any portion thereof. You may not knowingly or intentionally take any action that may impose an unreasonable burden or load on the Magazine Services or its servers and infrastructures.
- You may not build a business, in whole or in part, resell, redistribute, recirculate or make any other commercial use of, or create derivative works or materials utilizing any portion of the Magazine Services (including any code used in any software) or Content, whether or not for profit.
- To the extent we make the Magazine Services or Content available to you via a widget, embedded player or other technology that allows you to embed or stream Content on or to another online service, you may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of such technology, any digital rights management mechanism, device, or other content protection or access control measure associated with Content.
- You are prohibited from disabling, modifying, interfering with or otherwise circumventing any technology to view the Magazine Services or Content without: (i) displaying visibly both Content and all surrounding elements and (ii) having full access to all functionality permitting viewing of Content, including, without limitation, all video quality and display functionality, and interactive or click-through functionality.
Any future release, update, or other addition to functionality of the Magazine Services or Content shall be subject to this Agreement. All copyright and other proprietary notices on any Magazine Services content or materials must be retained on all copies thereof. Modification or use of the Magazine Services (including any content or materials published thereon) for any purpose not permitted by this Agreement is prohibited and may be a violation of the copyrights and/or trademarks protected by law and this Agreement.
If you provide Posh Kids any feedback or suggestions for improving or regarding your use of the Magazine Services (“Feedback”), you hereby assign to Posh Kids all rights in the Feedback and agree that Posh Kids shall have the right to use such Feedback and related information in any manner it deems appropriate. Posh Kids will treat any Feedback you provide to Posh Kids as non-confidential and non-proprietary. You agree that you will not submit to Posh Kids any information or ideas that you consider to be confidential or proprietary.
7. User Content
“User Content” means any and all information and content that a user submits to, or uses with, the Magazine Services (e.g., photos, audio, video, messages, text, files, or other content you provide us), except any Feedback. You are solely responsible for your User Content. User Content may include unsolicited or invited submissions. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Posh Kids. Because you alone are responsible for your User Content (including backing up your data), you may expose yourself to liability. Under no circumstance will Posh Kids be liable for any inaccuracy or defect in any User Content.
You hereby grant, and you represent and warrant that you have the right to grant, to Posh Kids an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, for any lawful purpose. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other users of the Magazine Services are solely between you and such user. You agree that Posh Kids will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Magazine Services, we are under no obligation to become involved. You acknowledge that other users may post comments about your User Content which may be derogatory, and Posh Kids has no obligation to monitor or delete any such User Content. Posh Kids may remove or modify any User Content without notice or liability at any time in Posh Kids’s sole discretion.
8. User Submissions
You agree that we may use information/User Content you provide us through emails, Q&A, blogs, forums, polls, or through any other user generated submission, and may use your name and any stories you provide us in articles or other features published on the Magazine Services or in our publications, advertising or sponsored content. If you provide us with personal anecdotes, they may be attributed to you. Posh Kids can edit, rewrite, use, and reuse the User Content, including your name, likeness, photograph, and biographical information you provide, with or without attribution, including publication in the Magazine Services or our publications, advertising or sponsored content.
From time to time, the Magazine Services may expressly request submissions of concepts, stories, or other potential content from you (“Invited Submissions”). Please carefully read any specific rules or other terms and conditions that appear in connection with such Invited Submissions as such terms and conditions will govern the submissions and may affect your legal rights. If no such additional terms govern those submissions, then this Agreement will apply in full to any Invited Submissions you make. IN ANY EVENT, ANY MATERIAL YOU SEND TO US WILL NOT BE TREATED AS CONFIDENTIAL. Regardless of any industry custom or practice, we will not pay you for the use of any content that you submit to through the Magazine Services.
If we become aware of a user’s violation of this Agreement, including the rights of any third party, we may take certain remedial steps, including refusing access to the Magazine Services to any person or entity and change eligibility requirements at any time.
If we become aware that any of our users has repeatedly infringed the proprietary rights of any third party, we may take steps to terminate that user’s access to the Magazine Services. We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion. Such acts may include removing or modifying your User Content, terminating your access to the Magazine Services (including any user account, registration or membership), legal action and/or reporting you to law enforcement authorities. If Posh Kids elects to modify User Content, Posh Kids nonetheless assumes no responsibility for the User Content.
Posh Kids reserves the right to investigate suspected violations of this Agreement, including without limitation, any violation arising from any User Content (including unsolicited or invited submissions), postings or emails you make on or send through the Magazine Services. Posh Kids may seek to gather information from the user who is suspected of violating this Agreement and from any other user. Posh Kids may suspend any users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If Posh Kids believes, in its sole discretion, that a violation of this Agreement has occurred, it may edit or modify any submission, posting or emails, remove the material permanently, cancel postings, warn users, suspend users and passwords, terminate accounts, or take other corrective action it deems appropriate. Posh Kids may cooperate with law enforcement authorities or court order requesting or directing Posh Kids to disclose the identity of anyone posting any emails, or publishing or otherwise making available any materials that are believed to violate this Agreement. BY ACCEPTING THIS AGREEMENT, YOU WAIVE AND HOLD HARMLESS POSH KIDS (and its affiliates and its and their officers, directors, employees, contractors, and agents) FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY POSH KIDS (AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS) DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER POSH KIDS OR LAW ENFORCEMENT AUTHORITIES.
10. Your Conduct and Responsible Use of the Magazine Services
Please act responsibly when using the Magazine Services. The following rules are a condition of your access to or use of the Magazine Services and Content:
- No Criminal or Unlawful Conduct. You may only use the Magazine Services and Content (including any information contained therein) for lawful purposes, in accordance with this Agreement, applicable laws and regulations, and obligations or restrictions imposed by any third party. You may not encourage conduct that would constitute a criminal offense or give rise to civil liability.
- Your Materials Must be Lawful and Appropriate. You may not store, upload, post, transmit or otherwise distribute or facilitate the distribution of any unlawful, harmful, threatening, abusive, harassing, libelous, defamatory, obscene, pornographic, profane, indecent, invasive of another person’s privacy or otherwise inappropriate User Content or other material or information of any kind, including, without limitation, any images or other material of a sexual nature, harmful to minors in any way, or that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability. You recognize that storing, distributing or transmitting unlawful User Content, material or information could expose you to criminal and/or civil liability.
- Content Posted by You Must be Yours. You may not store, upload, post, transmit or otherwise distribute or facilitate the distribution of User Content, material or information that is fraudulent or infringes the rights of any third party, including without limitation, patent, trademark, copyright, right of publicity or other proprietary rights. You agree that if a third party claims that User Content, material or information you have posted on or contributed to the Magazine Services is unlawful, you will bear the burden of establishing that it is lawful. You understand and agree that all User Content, material or information publicly posted or privately transmitted on or through the Magazine Services are the sole responsibility of the sender, not Posh Kids, and that you are responsible for all User Content, material or information you upload, publicly post or otherwise transmit to or through the Magazine Services. If we become aware that any of our users has infringed the proprietary rights of any third party, we may take steps to terminate that user’s access to our Magazine Services. If any third party provides you compensation or other value for your User Content, you are responsible for making any appropriate or required disclosures regarding such compensation or other value.
- No Collection of Personal Information from Others. You may not, through manual or automated means, collect, harvest, gather, assemble or store personal information about other users of the Magazine Services (including their email addresses or other contact information) without their explicit consent. You may not use any such information to transmit or facilitate transmission of unauthorized or unsolicited advertising, junk or bulk email, chain letters, or any other form of unauthorized solicitation. You agree not to send, create, or reply to so called mailbombs (i.e., emailing copies of a single message to many users, or sending large or multiple files or messages to a single user with malicious intent) or engage in spamming (i.e., unsolicited emailing for business or other purposes) or undertake any other activity which may adversely affect the operation or enjoyment of the Magazine Services by any other user or third party, including placing malware on the Magazine Services.
- No Bullying, Impersonation or Interference. You may not use the Magazine Services to threaten, abuse, harass, or invade the privacy of any other user or third party. You may not impersonate any person or entity or falsely state or otherwise misrepresent your professional or other affiliation with Posh Kids or with any other person or entity. You may not restrict, inhibit or interfere with any other user or third party from using or enjoying the Magazine Services.
- No System Abuse. You may not upload, post or otherwise distribute or facilitate the distribution of a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of the Magazine Services, any other online services, or to obtain unauthorized access to the Magazine Services or Content or any data or other information of any third party. You may not interfere with, disrupt, or create an undue burden on servers or networks connected to the Magazine Services.
- No Violations of Security Systems. You are prohibited from using the Magazine Services to compromise the security or tamper with, or gain unauthorized access to, the Magazine Services, Content, online accounts or any other computer systems, resources or networks. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools, malware, or network probing tools) is strictly prohibited. If you become involved in any violation of systems security, Posh Kids reserves the right to release your details to relevant third parties, law enforcement and/or governmental authorities in order to assist them in resolving security incidents.
We may require, at any time, proof that you are following these rules. We reserve the right to take, or refrain from taking, any and all steps available to us, including suspending or terminating your access to the Magazine Services or seeking other legal or equitable remedies, once we become aware of any violation of this Agreement.
11. Availability of and Modification to the Magazine Services and Content
We do not guarantee that the Magazine Services or any Content will be made available through the Magazine Services. We may change, modify, edit, suspend, discontinue or otherwise manipulate the Magazine Services, Content or any part, feature or service of the Magazine Services at any time with or without notice to you. You agree that Posh Kids will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Magazine Services, Content or any part thereof.
a) We may make certain products, features and services available for purchase or download (“Purchases”) on or through the Magazine Services. You agree to pay any applicable fees for any Purchases you make, including, without limitation, any applicable sales, uses or similar taxes or charges. Certain products, fee-based services or features that you purchase, access or download via the Magazine Services may be subject to additional terms and conditions presented to you at the time of purchase, access or download.
b) Digital Membership Products
This section governs the sale of digital membership and/or subscription products (“Digital Membership Products”). The Digital Membership Products include all or portions of a Magazine Service that offers such Digital Membership Products. You are not required to purchase anything for certain limited uses of the Magazine Services. However, if you do not purchase a Digital Membership Product, your access to certain content and services will be limited or restricted.
- Overview. We reserve the right to modify the content, type and availability of any Digital Membership Product at any time. Additionally, we reserve the right to change or terminate any offered subscriptions or promotions at any time. For details about your purchases of Digital Membership Products, including payment methods and billing cycles, email us at firstname.lastname@example.org or login to your user account for the relevant Digital Membership Product if you have created one. When you make a one-time purchase of a Digital Membership Product (for example, a 30 day subscription or standalone product such as an article from our archives or a gift subscription), we will charge or debit your payment method at the time of purchase.
- Auto-renewing Subscription. Unless you cancel your Digital Membership Product, it will be automatically renewed at the end of each subscription term, at the rate(s) then in effect. You will receive an auto-renewal reminder notice with the then current rate(s) (i) 5 days prior to charging your credit/debit card/3rd party payment account for a monthly Digital Membership Product and (ii) 30 days prior to charging your credit/debit card/3rd party payment account for an annual Digital Membership Product. You may opt out of the automatic renewal at any time by contacting customer service at email@example.com and (i) your monthly Digital Membership Product will continue until the end of the then current month and (ii) your annual Digital Membership Product will continue until the effective date of your cancellation and you will receive a pro-rated refund for all remaining months.
- Recurring Billing. By placing an order for a Digital Membership Product, you authorize us to charge you the subscription fee then in effect at the beginning of each billing period to your payment method. For example, you authorize us to charge your payment method the promotional rate disclosed on the subscription screen in the initial billing period (if applicable) and the regular subscription rate in subsequent billing periods. We reserve the right to change the timing of our billing, in particular, in the event your payment method has not successfully settled. If your payment method is declined for a recurring payment of your subscription fee, provide us a new payment method promptly or your subscription will be canceled. You acknowledge that the amount charged each billing period may vary for reasons that may include price changes or changing your subscription, and you authorize us to charge your payment method for such varying amounts each billing period.
- Price Changes. We reserve the right to change subscription fees for Digital Membership Products at any time. We will notify you of any changes if the regular fee for your subscription changes from what was stated at the time of your initial order. You will have an opportunity to cancel your subscription. If you do not cancel your subscription, you will be charged the new subscription fee at your next billing period.
- Cancellations. When you cancel a Digital Membership Product, you cancel only future charges associated with your subscription. You may notify us of your intent to cancel at any time, but the cancellation will become effective at the end of your current billing period.
c) Print Subscriptions – Automatic Renewal and Continuous Service (“Continuous Service Program”)
This section governs print subscriptions, whether ordered online or offline. If you have enrolled in the Continuous Service Program in connection with your print subscription, it will be automatically renewed at the end of each subscription term, at the rate then in effect, unless you tell us otherwise. You authorize us to fulfill your subscription and charge the credit/debit card/3rd party payment account if provided, or send you a bill if not. You will not receive any renewal notices; instead, you will receive a clearly marked reminder notice with the then-current rate about 30 days prior to charging your credit/debit card/3rd party payment account or receiving a bill. You may opt out of the automatic renewal at any time by contacting customer service at firstname.lastname@example.org and receive a refund for all undelivered issues.
If you have a dispute with one or more users of the Magazine Services (including merchants), you release Posh Kids (and its affiliates and its and their officers, directors, employees, contractors and agents) from claims, demands, liabilities, costs, or expenses and damages (actual and consequential of every kind and nature, known and unknown, arising out of or in any way connected with such disputes). In entering into this release, you expressly waive any protections (whether statutory or otherwise) to the extent permitted by applicable law that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to indemnify and hold Posh Kids (and its affiliates and its and their officers, directors, employees, contractors, and agents) harmless, including costs and reasonable attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Magazine Services or Content, (b) your User Content, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. Posh Kids reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Posh Kids. Posh Kids will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE MAGAZINE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SERVICE PROVIDERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SERVICE PROVIDERS) MAKE NO WARRANTY THAT THE MAGAZINE SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
DUE TO THE INHERENT NATURE OF THE INTERNET, WE CANNOT GUARANTEE THAT INFORMATION, DURING TRANSMISSION THROUGH THE INTERNET OR WHILE STORED ON OUR SYSTEMS OR OTHERWISE IN OUR CARE, WILL BE ABSOLUTELY SAFE FROM INTRUSION BY OTHERS. POSH KIDS ASSUMES NO LIABILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, HARDWARE OR NETWORK FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER CONTENT. YOU UNDERSTAND THAT IF YOU DOWNLOAD ANY MATERIAL, YOU DO SO AT YOUR SOLE RISK. POSH KIDS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE Magazine Services or any online services linked to the Magazine Services in terms of their correctness, accuracy, reliability, or otherwise. UNDER NO CIRCUMSTANCES SHALL POSH KIDS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE MAGAZINE SERVICES, ANY CONTENT POSTED ON OR THROUGH THE MAGAZINE SERVICES, OR CONDUCT OF ANY USERS OF THE MAGAZINE SERVICES, WHETHER ONLINE OR OFFLINE. YOU USE THE MAGAZINE SERVICES AT YOUR OWN RISK. SOME AREAS OF OUR MAGAZINE SERVICES OFFER ADVICE FROM A VARIETY OF PROVIDERS, WHO MAY BE AFFILIATED WITH POSH KIDS OR MEMBERS OF THE USER COMMUNITY; SUCH ADVICE IS FOR ENTERTAINMENT ONLY AND NOT AS TREATMENT OR REMEDY FOR AN INDIVIDUAL CIRCUMSTANCE. POSH KIDS CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE MAGAZINE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
16. Limitation of Liability
IN NO EVENT SHALL WE (AND OUR affiliates and OUR and their officers, directors, employees, contractors and agents ) OR OUR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER CONTRACT, IN TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY LOSS OR DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR OTHERWISE) LOST PROFIT, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE MAGAZINE SERVICES INCLUDING FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID POSH KIDS IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SERVICE PROVIDERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO IN THOSE STATES OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
17. Third Party Services and Ads
The Magazine Services might contain links to third-party websites, apps or other services (e.g., social media platforms), and advertisements for third parties (collectively, “Third-Party Services & Ads”). Such Third-Party Services and Ads are not under the control of Posh Kids and Posh Kids is not responsible for any Third-Party Services and Ads. Posh Kids provides these Third-Party Services and Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services and Ads. When you use Third-Party Services and Ads, you do so at your own risk. When you link to Third-Party Services and Ads, the applicable third party’s terms and policies apply, including the third party’s privacy policies.
18. Third Party Affiliate Marketing
We participate in affiliate marketing and may allow third-party affiliate links to be encoded on some of our Magazine Services. This means that we may earn a commission when you click on or make purchases via third-party affiliate links.
19. Local Regulations
- Posh Kids makes no representation that the Magazine Services or Content are appropriate or available for use outside the United States, its territories, possessions, and protectorates. If you choose to access the Magazine Services or Content from other locations, you do so on your own initiative and at your own risk.
- You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country you reside in.
Posh Kids may, in its sole discretion, terminate your password, account (or any part thereof) or use of the Magazine Services, or remove and discard any User Content or information stored, sent, or received via the Magazine Services without prior notice and for any reason or no reason, including, but not limited to: (i) permitting another person or entity to use your identification to access the Magazine Services, (ii) any unauthorized access or use of the Magazine Services, (iii) any violation of this Agreement, or (iv) tampering with or alteration of any of the software, data files, and/or Content contained in or accessed through, the Magazine Services. You may terminate your account for any reason or no reason. Termination, suspension, or cancellation of this Agreement or your access rights to the Magazine Services shall not affect any right or relief to which Posh Kids may be entitled, at law or in equity. Upon such termination, suspension, or cancellation, all rights granted to you will automatically terminate and immediately revert to Posh Kids and its licensors and all rights granted by you to Posh Kids shall survive in perpetuity.
Notwithstanding any termination, suspension, or cancellation of this Agreement or your access rights to the Magazine Services, the following provisions of this Agreement will survive: Sections 2 – 29.
21. Entire Agreement
This Agreement (including the Privacy Notice) constitutes the entire agreement between you and us regarding the use of the Magazine Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
22. Changes to this Agreement
We may revise, prospectively, this Agreement by posting an updated version on the Magazine Services. You consent and agree to receive notices of updates to this Agreement through our posting of an updated Agreement on the Magazine Services. You should visit this page or section regularly to review the current version of the Agreement. Your continued use of the Magazine Services will be deemed as irrevocable acceptance of any revisions.
23. Dispute Resolution (Arbitration Clause and Class Action Waiver)
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
23.1 Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and Posh Kids arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Magazine Services.
23.2 YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND POSH KIDS ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND POSH KIDS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
23.3 The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Posh Kids must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: San Francisco, CA, Denver, CO, or New York, NY. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New York City, New York. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in New York City, New York.
24. No Waiver
No failure or delay by Posh Kids in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
25. Governing Law
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of New York, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
26. Notice to California Users
Under California Civil Code Section 1789.3, California users of the Magazine Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
27. Copyright Infringement Claims Policy
In accordance with the provisions of the Digital Millennium Copyright Act, 17 USC sec. 512, our Magazine Services have designated an agent to receive notices of claims of copyright infringement: Copyright Agent, 300 West 57th Street, New York, New York, 10019, fax: 212-649-2035; email@example.com. If you believe your copyright has been infringed, you may provide us with notice. To be effective, the notification must be a written communication that includes the following:
- A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, including an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We may give notice to our users that we have received a notice of infringement by means of a general notice on our site, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to a user’s physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for the judicial district in which our offices are located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
We have a policy of terminating access to our Magazine Services of any user who repeatedly infringes the proprietary rights of any third party.
28. Apple App Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using an app from the Apple App Store (an “Apple App”). To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 28, the more restrictive or conflicting terms and conditions in this Section 28 apply, but solely with respect to Apple Apps from the Apple App Store.
Acknowledgement: Posh Kids and you acknowledge that this Agreement is concluded between Posh Kids and you only, and not with Apple, and Posh Kids, not Apple, is solely responsible for the Apple App and the content thereof. To the extent this Agreement provides for usage rules for Apple App that are less restrictive than the usage rules set forth for the Apple App in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
Scope of License: The license granted to you for the Apple App is limited to a non-transferable license to use the Apple App on an iOS Product that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
Maintenance and Support: Posh Kids is solely responsible for providing any maintenance and support services with respect to the Apple App, as specified in this Agreement (if any), or as required under applicable law. Posh Kids and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App.
Warranty: Posh Kids is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Apple App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Posh Kids’s sole responsibility.
Product Claims: Posh Kids and you acknowledge that Posh Kids, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple App or your possession and/or use of the Apple App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Posh Kids’s liability to you beyond what is permitted by applicable law.
Intellectual Property Rights: Posh Kids and you acknowledge that, in the event of any third-party claim that the Apple App or your possession and use of the Apple App infringes that third party’s intellectual property rights, Posh Kids, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting“ country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address: Posh Kids’s contact information for any end-user questions, complaints or claims with respect to the email firstname.lastname@example.org.
Third Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Apple App.
Third-Party Beneficiary: Posh Kids and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple 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.
29. Copyright/Trademark Information
Copyright © 2022, Posh Kids Magazine, llc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Magazine Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
30. Contact Us.
If you have any questions about this Agreement, you may contact us by email at email@example.com.