LAST UPDATED: August 20, 2012
Please read these Terms & Conditions of Use (the "Agreement") carefully before using this website.
FALLON has engaged Zindigo, Inc. to administer this site and provide back-end e-commerce services under contract.
By using any of the following websites (collectively, the "ZINDIGO and FALLONWEBSITES"), you agree to be bound by this Agreement: TRACYWATTS.COM, ZINDIGO.COM, or any of the “Empowered by Zindigo” FALLONsites, any of the Zindigo or Zindigo Ambassador related websites or pages on Facebook, Google +, Twitter, Tumblr or on any other social media platform. If you do not agree to the terms and conditions of this Agreement, please do not use any of the above mentioned WEBSITES.
Zindigo, Inc., a company incorporated under the laws of the State of Delaware, U.S.A. (referred to herein as “ZINDIGO,” “the Company,” “we,” “us” and “our”), reserves the right to modify, without providing prior notice to you, this Agreement and/or related Services, in whole or in part, from time to time at our sole discretion. Any such changes will be effective immediately upon posting. You can determine when this Agreement was last revised or modified by referring to the "LAST UPDATED" legend at the top of this Agreement. You should always check this Agreement prior to using the ZINDIGO WEBSITES. Your continued use of the ZINDIGO WEBSITES and Services following the posting of changes to this Agreement will mean that you accept those changes. If the modified Agreement is not acceptable to you, your only recourse is to cease using allZindigo WEBSITES and Services, immediately. You may contact Zindigo by emailwith questions about the terms and conditions of this Terms and Conditions ofUse Agreement.
For purposes of this Agreement, the following terms have thefollowing meanings:
- “Collective Content” any text, graphics, images, music, software, audio, video, information, or other materials, provided or posted on any of the Zindigo Websites.
- “Services” Zindigo, Inc (“Zindigo”) provides Services (”Services”) that enable users to engage in ecommerce from Social Agents and Brands, who create and showcase online Boutiques for displaying and selling products online and on social networking sites.
- “Brands” (“Brands” or “Brand Partners”) refers to any of the companies whose branded items are sold, represented, described, or characterized on any of the Zindigo WEBSITES.
- “Boutique” (“Store” or “Boutique”) refers to area or page of the Zindigo WEBSITES where customers may view and/or purchase items for sale, to include “Store Windows” embedded on and Agent’s page, site, or wall.
Anyone using any Zindigo WEBSITE, please read carefully the following Termsand Conditions of Use (“Terms”) and our PrivacyPolicy., which is incorporated herein by reference into these Terms.Whether you are a customer, Agent, or Brand, these Terms and Conditions governyour access to, and use of the Zindigo Websites and Services and CollectiveContent, and constitute a binding legal agreement between you and Zindigo,Inc.
Zindigo's Terms And Conditions of Use
These terms and conditions govern your access to and use of any Zindigowebsite, to include Zindigo.com, any “powered by Zindigo” site oraffiliate Social Agent's Zindigo Boutique or Licensed Brand Ambassador’sBrand Partner Store.
This is an agreement ("Agreement") between you and Zindigo, Inc., a Delawarecorporation whose principal place of business is located at 253 W 35th St 15thFl, New York, N.Y., 10001. Your access and use of the website is furthersubject to any other written agreement between you and Zindigo, the terms ofwhich are incorporated herein by reference and which control in the event of aconflict.
Eligibility to use the Website
If you choose to provide any information or fill out any forms on thewebsite, you agree to (i) provide true, accurate, current, and completeinformation; and (ii) maintain and promptly update the information you provideto Zindigo in order to keep your profile true, accurate, current, and complete. Zindigo reserves the right to use a third party/parties (for exampleFacebook or Twitter connect) to assist in any aspect of the registrationprocess.
Note Regarding Zindigo Social Agent or Ambassador’sPersonalized Franchised Store Sites
Limited License and restrictions on use
Zindigo grants you a revocable, non-exclusive, non-transferable, limitedright to access and use the website for your personal use to make purchases; orto seek engagement for yourself as a Zindigo Social Agent, provided that youcomply fully with this Agreement, as well as any other rules, procedures,policies, terms, or conditions that govern all or any portion of the website.At any time and for any reason Zindigo may revoke your right to use all or anyportion of the website. You shall not:
- Modify, delete, copy, reproduce, repackage, publish, broadcast, license, transmit, distribute, display, perform, redeliver, frame, create derivative works from, participate in the transfer or sale of, post on the web, or exploit the website, or any portions thereof, including, without limitation, any text, images, articles, photographs, illustrations, audio, video clips, graphics, interfaces, information, data, tools, products, and other content or other materials on, generated by or obtained from the website (together, "Content"), without our express written permission;
- Violate or attempt to violate the security of the website in any way through any means or device including, without limitation, spamming, hacking, uploading computer viruses or time bombs, or the means expressly prohibited by any provision of this Agreement;
- Decompose, decompile, reverse engineer, disassemble, or otherwise deconstruct all or any portion of the website; or
- Remove any copyright, trademark, or other proprietary notice or legend contained on (or printed from) the website.
Contributed content and restrictions on posting
In connection with your use of this website, you may have occasion to uploador otherwise contribute ideas, comments, editorials, writings, communications,drawings, images, data, or other types of content ("Contributed Content") tothe website.
You grant to Zindigo a perpetual, worldwide, irrevocable, unrestricted,non-exclusive, royalty-free license to use, copy, license, sublicense, adapt,distribute, display, publicly perform, reproduce, transmit, modify, edit, andotherwise exploit any Contributed Content that you post on or through thewebsite, and any ideas or original materials contained in such communications,in all media now known or hereafter developed. You waive all rights you mayhave to inspect and/or approve of any use by Zindigo of any ContributedContent. You waive all rights to any claim against Zindigo for any alleged oractual infringements of any proprietary rights, rights of privacy andpublicity, moral rights, and rights of attribution in connection with suchContributed Content. You agree and understand that Zindigo is under noobligation to use any Contributed Content in any way whatsoever.
Contributed Content is not guaranteed by Zindigo as to accuracy,completeness, or usefulness, and Zindigo does not endorse any ContributedContent. It is the responsibility of the website users to evaluate theaccuracy, completeness, or usefulness of any Contributed Content.
You agree not to upload, post, or otherwise make available on the website,whether Contributed Content or otherwise:
- Any material protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right. You agree and acknowledge that you have the burden of determining whether any material is or is not protected by copyright;
- Any material that is discriminatory, sexually explicit, racist, obscene, libelous, defamatory, threatening, harassing, abusive, hateful, or otherwise injurious to third parties (such as any content that would violate the privacy or publicity rights of others);
- Any material that would mislead as to the origin of your Contributed Content, such as by impersonating any person or entity, living or dead;
- False, inaccurate, or misleading information, opinions, or notices (commercial or otherwise) or chain letters;
- Advertisements or solicitations of business; or
- Trade secrets (unless you own them or have the owner's permission to post them).
By submitting Contributed Content, you warrant that the owner of suchContributed Content has expressly granted to Zindigo a perpetual, worldwide,irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy,license, sublicense, adapt, distribute, display, publicly perform, reproduce,transmit, modify, edit, and otherwise exploit such Contributed Content and anyideas or original materials contained in such communications, in all media nowknown or hereafter developed. You also permit any other user of the website toaccess, view, store, or reproduce the Contributed Content for that user'spersonal use.
Zindigo has the right, at its sole discretion, to edit, refuse to post, orremove any Contributed Content submitted to or posted on the Zindigo Websitesincluding, but not limited to, content that is unlawful, threatening, libelous,defamatory, obscene, pornographic, graphic, or otherwise objectionable.
Password and user ids
To access some, if not all, Zindigo Websites, you will be required toregister via an "Access Method" and may be prompted to enter a user ID andpassword, and/or to connect with Facebook or Twitter. You may be supplied withother methods required to access Zindigo Websites and/or your account, such asan activation code. You are solely responsible for the confidentiality andsecurity of your Access Methods. You are responsible for all activities thatoccur under your Access Methods and/or account and may not share your logindetails with others. Zindigo is not obligated to inquire as to the authority orpropriety of any use of, or action taken under, your Access Methods and/oraccount, or any other security breaches you become aware of. You mustimmediately notify Zindigo of any actual or suspected loss, theft, orunauthorized use of your Access Methods. Zindigo will not be responsible forany loss to you that arises from any use of your account or your Access Methodsor from your failure to comply with these provisions.
Ownership; Intellectual property policy; InfringementNotice
Zindigo owns, controls, licenses, or has the right to use and provide thewebsite and all Content on the website. The website is protected by copyrightas a collective work and/or compilation, pursuant to U.S. copyright laws,international conventions, and other copyright laws. Zindigo owns the copyrightin the entire website, including, a copyright in the selection, coordination,arrangement, and enhancement of the website. You agree to abide by any and allcopyright notices, information, or restrictions displayed on the website.
The website may also contain trademarks, service marks, brand names,certification marks, collective marks, D/B/As, Internet domain names, logos,symbols, trade dress, assumed names, fictitious names, trade names, and otherindicia of origins (collectively, "Marks") that are owned by Zindigo or by itsBrand Partners, and you may not use any such marks without Zindigo's or theBrands' written permission. You shall not purchase search engine keywords thatuse any Zindigo Marks or Marks of any Brands, or any derivations thereof.
Pursuant to Section 512(c)(2) of the Copyright Revision Act, as enactedthrough the Digital Millennium Copyright Act, Zindigo designates the agentdescribed below to receive notifications of claimed copyright infringement bymail:
The designated copyright agent can also be reached by telephone at877-212-8450 and by email
Please include the following in your notice:
- The physical or electronic signature of the owner or someone authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A description or identification of the copyrighted work you claim has been infringed;
- A description of the material that is claimed to be infringing, and information reasonably sufficient to allow us to find it;
- Your address, telephone number, and e-mail address;
- A statement that you have 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, under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on behalf of the owner.
Repeated violations of others' copyrights may result in a loss ofprivileges.
How to order merchandise through the site
After placing an order, you will receive an email from Zindgo acknowledgingthat Zindigo has received your order (generally, "Order Confirmation"). Zindigo is not obliged to supply any other products, which may have been partof your order in a separate Order Confirmation. Zindigo reserves the right tocancel your order at any time where there has been an obvious error in price orwhere the product is no longer in a Brand's or its third-party fulfillmentprovider's inventory.
Prices and Availability of Products
Prices and availability of products on the website are subject to changewithout notice. Errors will be corrected when discovered. The website containsa large number of products and it is always possible that, despite Zindigo'sbest efforts, some of the products listed on the website may be incorrectlypriced. If a product's actual price is higher than the price stated on thewebsite, Zindigo will normally, at Zindigo's discretion, either contact you forinstructions before completing the order and delivering the product, or it willreject your order and notify you of such rejection. Zindigo is under noobligation to provide the product to you at the incorrect (lower) price, evenif Zindigo has sent you an Order Confirmation or a Shipping Confirmation, ifthe pricing error is obvious and unmistakable and could have reasonably beenrecognized by you as a pricing error.
On occasion, you may be able to place a product in your shopping cart andsubmit your order for processing, but your order is subsequently cancelled dueto unavailability of product. You acknowledge that products may sell quicklyand there may be a short period of time after an order has been submitted, butwhere the product is no longer available. Under such circumstances, you agreethat Zindigo may cancel your order after you have received an OrderConfirmation without penalty.
On very rare occasions, you may receive a Shipping Confirmation fromZindigo, but the product is no longer available in the Brand Partner'sinventory. You agree that Zindigo may rescind Zindigo acceptance and cancelyour order without penalty if the Brand Partner is unable to ship the productyou ordered due to unavailability.
Upon receipt of the Shipping Confirmation from Zindigo, shipping orfulfillment of all orders placed on the website shall be solely governed byZindigo's shipping terms. The term shipping or ship includes the commencementof shipping items in an order for multiple purchases or where the itempurchased consists of components that must be shipped separately. Forexample, your order may consist of (i) several different items; (ii) a quantityof the same items; or (iii) a single item with several component parts the sizeof which might require them to be shipped in separate packages. In all suchorders, the Brand Partners will endeavor to ship out individual packagestogether so that they arrive at the same time; however, when that is notpossible, Brand Partners commence shipping by shipping individual packages inthe order the soonest they are available and conditions permit. In theseinstances, any notification to you that your order has shipped marks the timewhen shipping of an individual item has commenced; it does not mean that allitems in the order or from all Brand Partners have shipped at that time. Allpackages sent have a separate tracking number and may be followed on the OrderStatus page. You agree that your credit card or debit card may be charged onthe date of inventory reservation for the order placed with Zindigo, notnecessarily upon shipping of the order.
Zindigo and their Brand Partners reserve the right to prevent purchases andnot conduct transactions with customers in certain countries. Furthermore, Agents’ option to offer free shipping to their customersDOES NOT APPLY to international shipments. In the event that you, as acustomer, require International Shipping, you are solely responsible for anycustoms, duties, or any other taxes or fees associated with InternationalShipping, and neither Zindigo nor Brand Partners will have any responsibilityfor paying any such taxes or fees.
Return shipping is FREE within the United States unless otherwise statedso. Returned merchandise must be sent to the manufacturer within 14 daysfrom the date you received it. Merchandise must be unused and in the samecondition as it was shipped. Merchandise that has been worn, used,altered, or damaged will not be accepted. A refund will be issued for100% of the purchase price, ONLY. Any other expense incurred by you toreceive the merchandise, to include shipping, insurance, customs duty or anyother related fees will not be reimbursed. Merchandise must be returnedin accordance with the instructions for return included with shippedmerchandise. Any costs incurred with returns shipped by alternate meanswill not be reimbursed. On international orders, refunds will not include anycustoms or import duties, brokerage fees, or taxes paid on shipments.
Risk of Loss
All items purchased via the website are made pursuant to Zindigo's terms ofpurchase contained in the Shipping Confirmation. Accordingly, the risk of lossand title for items purchased pass to you upon tender of the item by Zindigo tothe carrier, or as otherwise provided in the Shipping Confirmation.
Allocation of Liability
You acknowledge and agree that Zindigo is offering the opportunity toprovide items for sale via this website for the benefit of the various BrandPartners, as agent for such Brand Partners, and that this Agreement governsonly access to and use of the website and the relationship between Zindigo andyou, and any orders placed with Brand Partners will be governed by suchapplicable agreements as may exist between Zindigo and you. Accordingly, withrespect to satisfaction of obligations and liabilities arising under orpursuant to orders placed with Zindigo, you shall only have recourse withZindigo and shall not have recourse, whether by setoff or otherwise, in respectof such obligations or liabilities to or against the Brand Partners. For theavoidance of any doubt, you acknowledge that once you receive ShippingConfirmation from Zindigo, a contract has been formed between you and Zindigoalone; the Brand Partners shall not be a party to such contract, and the BrandPartners shall have no liability with respect to any contract formed betweenyou and Zindigo. Your sole recourse shall remain with Zindigo.
Zindigo is not responsible for information on any third-party website thatis referred in, or accessible or connected by hyperlink to, the website. If youaccess any third-party website through this website or otherwise, you do so atyour own risk. Hyperlinks to or from this website do not constitute third-partyendorsement of, sponsorship by, or affiliation with Zindigo.
Unavailbility of the Website
Zindigo is not liable for any technological problems regarding the websiteand any impact that it may have. All or any portion of the website may not beavailable and may not function properly at any time. Zindigo makes reasonableefforts to avoid technological problems, but at any time the website may haveand may cause technological problems such as viruses and other damagingcomputer programming routines or engines. Zindigo takes reasonableefforts to ensure that the website is secure, but Zindigo does not guaranteethe security of the website. Zindigo is not liable for any defects, delays, orerrors in or resulting from your use of the website.
ZINDIGO DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE WEBSITE THAT THE LAWALLOWS IT TO DISCLAIM. THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT,IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATIONS ANDWARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OFINTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS. WITHOUT LIMITING OURGENERAL DISCLAIMER, ZINDIGO DOES NOT WARRANT THE SECURITY, AVAILABILITY,ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING ORSPEED OF DELIVERY OF THE WEBSITE OR ANY PART OF THE CONTENT.
Liability and Indemnity
ZINDIGO'S LIABILITY WITH RESPECT TO THE WEBSITE IS LIMITED TO THE MAXIMUMEXTENT PERMITTED BY LAW. IN NO EVENT WILL ZINDIGO OR ANY OF OUR AFFILIATES,BRAND PARTNERS, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT,INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED,ARISING OUT OF THIS AGREEMENT, THE WEBSITE, OR THE INABILITY TO USE THEWEBSITE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, ORUNDER ANY OTHER CAUSE OF ACTION, EVEN IF ZINDIGO, OR AN AUTHORIZEDREPRESENTATIVE, HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES OR IF ANYREMEDY YOU HAVE FAILS IN ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THEEXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVELIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU WILL BE RESPONSIBLE FOR ANY LIABILITY TO ZINDIGO THAT ARISES OUT OF YOURBREACH OF THIS AGREEMENT OR YOUR USE OF THE WEBSITE. YOU AGREE TO INDEMNIFY,DEFEND, AND HOLD HARMLESS ZINDIGO AND ITS AFFILIATES, BRAND PARTNERS, AGENTS,EMPLOYEES, AND THIRD-PARTY SOURCES AGAINST ANY AND ALL SUITS, LOSSES, CLAIMS,DEMANDS, LIABILITIES, DAMAGES, COSTS, AND EXPENSES (INCLUDING REASONABLEATTORNEYS' FEES) THAT ARISE FROM OR RELATE TO: YOUR USE OF THE WEBSITE, YOURBREACH OF THIS AGREEMENT, YOUR VIOLATION OF ANY APPLICABLE LAW, STATUTE,ORDINANCE, REGULATION, OR OF ANY THIRD-PARTY'S RIGHTS, CLAIMS ASSERTED BY ORBETWEEN YOU AND ANY BRAND PARTNER OR PARTNERS, OR CLAIMS ASSERTED BY THIRDPARTIES WHICH, IF PROVEN, WOULD PLACE YOU IN BREACH OF THIS AGREEMENT.
This Agreement is governed by and construed in accordance with the laws ofthe State of Delaware, without regard to conflicts of laws' provisions. Thesole and exclusive jurisdiction for any action or proceeding arising out of orrelated to this Agreement shall be an appropriate State or Federal courtlocated in the State of Delaware and you hereby irrevocably consent to thejurisdiction of such courts.
If any provision of this Agreement is found invalid or unenforceable, thatprovision shall be enforced to the maximum extent possible and the remainingprovisions of this Agreement shall remain in full force and effect.
Zindigo may assign this Agreement in whole or in part at any time withoutyour consent. You may not assign this Agreement or delegate any of yourobligations under this Agreement. Any purported assignment of this Agreement inviolation of its terms is void.
Zindigo shall not be deemed to be in breach of this Agreement and shall haveno liability hereunder if its obligations are delayed or prevented by anyreason of any act of God, war, fire, floods, earthquakes, natural disaster,accident, riots, acts of government, civil disturbance, terrorist act, shortageof materials or supplies, failure of any transportation or communicationsystem, non-performance of any of your third-party providers (including,without limitation, the failure or performance of internet service providers)or any cause beyond its reasonable control.
Your Consent for Notice
You agree that Zindigo has the right to send you certain information inconnection with the website. Zindigo may send you this and any otherinformation in electronic form to the e-mail address you specified when youcreated an account through the website. You may have the right to withdraw thisconsent under applicable law, but if you do, Zindigo may cancel your rights tothe website. Notices provided to you via e-mail will be deemed given andreceived on the transmission date of the e-mail. As long as you access and usethe website, you agree that you will have, or have access to, the necessarysoftware and hardware to receive such notices. If you do not consent to receiveany notices electronically, you agree to stop using or accessing the website.To unsubscribe from Zindigo notices you agree you are no longer an active Agentand have requested to unsubscribe via the standard “Unsubscribe”option posted in our mailings.
Availability outside of the United States
The Content or the Contributed Content may not be available for use outsideof the United States. Zindigo makes no representation that any Content or anyContributed Content is appropriate or available for use outside the UnitedStates, its territories, possessions, and protectorates. If you choose toaccess the website from other locations, you do so on your own initiative andat your own risk. You are responsible for complying with local laws, if and tothe extent local laws are applicable. You specifically agree to comply with allapplicable laws concerning the transmission of technical data exported from theUnited States or the country you reside in.