Last Updated: October 29, 2013
TERMS AND CONDITIONS
Please read the following legal information carefully before using the Site. These terms and conditions may have changed since your last visit to the Site. By accessing or using any portion of this Site, you indicate your acceptance of these terms and conditions. Tuesday Morning's acceptance is expressly conditioned upon your assent to all of these terms and conditions, to the exclusion of all other terms and conditions. If these terms and conditions are considered an offer by Tuesday Morning, acceptance is expressly limited to these terms and conditions. If you do not accept the terms and conditions of this TOU, then do not use this Site.
The terms "you," "your," "yours," and "User" refer to you, the User of the Site, regardless of if you are a registered User of the Site. The terms "Tuesday Morning," "TuesdayMorning.com," "we," "us," and "our" refer to Tuesday Morning, Inc.
You agree that by registering on TuesdayMorning.com, or by using the Site or Services, including any mobile applications, premium services, or other information which may be provided as part of the Tuesday Morning Services, you are entering into a legally binding agreement with Tuesday Morning, Inc. and agree to the terms and conditions of this TOU either for yourself or on behalf of another entity. As such, you represent that you are at least eighteen (18) years of age or are under the age of eighteen (18) but are registering with the consent of a parent or legal guardian. You also represent that you are not a person barred from receiving Services under the laws of the United States or other applicable jurisdiction. If you do not so qualify, do not attempt to register for or use the Site and the Services. By becoming a User, you acknowledge that you have read and understand the terms and conditions of this TOU and that you agree to be bound by all of its provisions. If you do not agree with this TOU, do not register for access to the Site and the Services or, if already registered, cease use of the Site and the Services and do not access, view, download, or otherwise use the Tuesday Morning Site or Services.
MODIFICATIONS TO THIS TOU
We reserve the right, in our sole discretion, to modify this TOU at any time and in any manner. Notice of any material modification of this TOU will be posted to the Site and communicated to Users via email, message notification on the Site or other similar method. Your continued use of the Site or Services constitutes your binding acceptance of such modifications. Modifications will be effective from and after the date such modifications are posted to this TOU.
CHILDREN UNDER 13
This Site is not directed or otherwise promoted for use by children under the age of thirteen (13). By accessing and using the Site and the Service, you represent that you are at least thirteen (13) years of age. If you are under thirteen years of age, stop using the Site and Service immediately.
CONDITIONS OF REGISTRATION AND USE
Any User may access the Site and view certain Content that is made publicly available. Additional Content and other features may be made available only to Users that register for a User account on the Site. As a condition to obtaining a registered User account, you are required to register with Tuesday Morning, select a password and screen name ("User ID"), provide a valid email address, and complete any other required account profile fields. You shall provide Tuesday Morning with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this TOU, which may result in immediate termination of your Tuesday Morning User account. You may not (i) select or use as a User ID a name of another person with the intent to impersonate that person; (ii) use as a User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a User ID a name that is otherwise offensive, vulgar or obscene. Tuesday Morning reserves the right to refuse registration of, or cancel, any Tuesday Morning account at its sole discretion.
Tuesday Morning may facilitate your registering for a Tuesday Morning account and User ID by allowing you to use your profile on Facebook, Twitter, Google Plus, Yahoo or other social media services or authentication providers that Tuesday Morning may integrate with the Services from time to time (each a "Social Media Account"). To register using a Social Media Account, such Social Media Account must be valid and not suspended. By using a Social Media Account to register, you are allowing Tuesday Morning to validate your Social Media Account with the respective social media service provider(s) to ensure the Social Media Account is genuine. Furthermore, your use of the Social Media Account constitutes your consent for the social media service provider to share your profile information with Tuesday Morning (to the extent available), including information such as your name, email address, date of birth, location, etc. Be aware that if you use a Social Media Account to register with Tuesday Morning, you are providing your information to Tuesday Morning and not to the social media service provider or other authentication provider. The Tuesday Morning Services are in no way sponsored, endorsed or associated with any social media service providers or other authentication providers. By using your Social Media Account, you agree to fully release the social media service providers and other authentication providers from all liability as described below under the section titled "Indemnity."
You may not use anyone else's User ID, password or account at any time without the express permission and consent of the holder of that User ID, password or account. Tuesday Morning cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Tuesday Morning immediately of any unauthorized use of your User ID, account or password, or any other breach of security. You will be responsible for losses incurred by Tuesday Morning or any other User of the Service due to someone else using your Tuesday Morning User ID, password or account. Tuesday Morning cannot and will not be liable for any loss or damage arising from your failure to comply with these provisions.
You, not Tuesday Morning, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your data, and Tuesday Morning shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of this data.
By providing us with your email address, you agree to receive all required notices electronically to that email address. From time to time, Tuesday Morning will use this email address to send you notifications about product updates and improvements, company news and events, and updates from our community.
You are not required to provide us with information other than what is needed for you to register to use the Service. You represent and warrant to Tuesday Morning that all of the information you so upload is true and correct in all material respects.
PERSONAL USE ONLY
The Service is made available to you for your personal use, in compliance with all applicable laws, rules and regulations. You may not make any commercial use of the Service, including, but not limited to, selling or distributing the Service for payment. Tuesday Morning reserves the right, at its sole discretion, to refuse or discontinue participation to any User at any time.
Except as expressly provided in this TOU, no part of the Service, no part of the Site and no Content may be stored, copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed or linked to in any way (including "mirroring" and "framing") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Tuesday Morning's express prior written consent.
LIMITATIONS AND USER CONDUCT
As a condition of your use of the Services, you warrant to Tuesday Morning that you will not use the Services for any purpose that is unlawful or prohibited by this TOU. You may not use the Site or any device, software or mechanism in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party's use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to, use the Services for any purpose that is unlawful or prohibited hereby, or any other purpose not reasonably intended by Tuesday Morning.
Tuesday Morning may make available to Users an account profile page that allows Users to upload various User Content (as defined below) to the Site. Tuesday Morning does not allow any of the following content, or links to such content, to be published on the Site or through the Service:
- content that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive in nature.
- content of an illegal nature or pirated (including stolen copyrighted material).
- content with the sole purpose of causing harm or inciting hate, or content that could be reasonably considered as slanderous or libelous.
- content that would be considered a criminal offense, harms minors in any way, gives rise to civil liability or violates any law, or that is otherwise inappropriate.
You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Additionally, you may not use the Services in connection with affiliate programs, multi-level marketing schemes, sites/blogs, or repurposing existing stories (source hops).
You may not change, reorganize, modify, copy, reverse engineer, or create derivative works from the Service or any part thereof, in order to (a) build a competitive product or Service; (b) build a product using similar ideas, features, functions, or graphics of the Service; (c) remove, change, or replace any Tuesday Morning trademarks, logos, copyrights, or any other branding elements; (d) hide, obscure, disable, or otherwise render inoperable any portion of the User interface including, but not limited to, the display of advertisements and promotions within the Service; or (e) copy any ideas, features, functions, or graphics of the Service. In addition, you may not use any meta tags or any other "hidden text" using Tuesday Morning's name or other trademark or service mark, nor any Tuesday Morning logo or other proprietary graphic or service mark as part of a link, without the express written consent of Tuesday Morning.
You may not use any "deep-link", "page-scrape", "robot", "spider' or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service, or in any way reproduce or circumvent the navigational structure or presentation of the Service to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service. Additionally, you may not take any action that imposes, or may impose (as judged by Tuesday Morning at its sole discretion) an unreasonable or disproportionately large load on our infrastructure.
You may not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any Tuesday Morning server, or to any of the services offered on or through the Service, by hacking, password "mining" or any other illegitimate means. You may not harvest or collect User names, User IDs, email addresses or any other User identifying information by electronic or other means for the purpose of sending unsolicited email or other communications. Unauthorized commercial advertisements, affiliate links, and other forms of solicitation may be removed from User profiles and/or community postings without notice and may result in termination of User privileges.
You may not upload, post, email, transmit or otherwise make available any User Content (as defined below) that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party. Additionally, you agree not to send or store spam, unlawful, infringing, obscene, or libelous material, or to upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
Any use of the Service or the Content other than as specifically authorized herein, without the prior written permission of Tuesday Morning, is strictly prohibited and will result in the termination of the User's account and right to access the Service. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this TOU shall be construed as conferring on any User any license to intellectual property rights arising out of or in connection with the Service, the Content or User Content, whether by estoppel, implication or otherwise. The rights granted by this TOU are revocable at any time without notice and with or without cause.
You hereby forever and irrevocably release and discharge Tuesday Morning and its parent, subsidiaries, affiliates, partners, officers, employees, agents, licensees, designees, insurers, personal and legal representatives, successors and assigns from any and all liability, claims, demands, losses, damages, costs or expenses (including, without limitation, attorneys' fees and costs) arising out of or in any way related to the sharing or posting of User Content.
When you post User Content through the Service, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content through the Service. By posting User Content through the Service in any way, you automatically grant, and you represent and warrant that you have the right to grant, to Tuesday Morning an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, modify, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, whether commercial, advertising, or otherwise, on or in connection with the Service or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. Tuesday Morning does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in this TOU, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content, subject to the terms of this TOU and the licenses granted herein.
If you choose to participate in any Contest (defined below) hosted by Tuesday Morning, you may have to submit User Content as a condition to participating in such Contest. Contests are governed by specific Contest Rules (defined below) and not by this TOU, and such Contest Rules may provide for differing treatment of your User Content than what is provided above in this TOU. Always review the Contest Rules carefully before deciding to participate.
Please notify Tuesday Morning immediately at custserv@TuesdayMorning.com (please put "User Content Issues" in the subject line of your email) of any User Content that you believe violates this TOU.
YOUR USE OF USER CONTENT POSTED BY OTHERS
You may not use, copy, reproduce, distribute, publish, display or perform, create derivative works of, transmit, sell, or in any way exploit any of the User Content posted by others in a manner that violates applicable laws or the copyright, trademark or other intellectual property rights, rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights or any other rights of any individual or legal entity.
REMOVAL OF USER CONTENT
COMMUNICATIONS FROM TUESDAY MORNING AND MARKETING PARTNERS
By using the Service, Users agree to receive communications from Tuesday Morning in various forms including, without limitation, emails, postal mail, telephone, text messages, Facebook messages, Twitter Tweets, messages from other social media, and messages within the Tuesday Morning Site or Service. If the User receives communications via the carrier service with which he or she has a mobile communications subscription or otherwise has access, User understands and agrees he or she is responsible for paying any service fees associated with receipt of messages on such mobile devices (including applicable data and text messaging charges and tolls). If the User desires to stop receiving communications from Tuesday Morning, the User must terminate his or her account (See "Termination" below).
As part of the Service, Users may choose to "opt in" to receiving various communications from Tuesday Morning's marketing partners. By choosing to opt in to receiving such communications, the User is affirmatively electing to receive communications from such marketing partners in various forms including, without limitation, emails, postal mail, telephone, text messages, Facebook messages, Twitter Tweets, and messages within other social media. Like with receiving communications from Tuesday Morning, Users are responsible for paying any service fees associated with receipt of communications from marketing partners on their mobile device (including applicable data and text messaging charges and tolls). Users acknowledge that Tuesday Morning is not in control of, nor is it responsible for, the content of any communications which Users may receive from marketing partners, nor is Tuesday Morning in control of or responsible for the frequency with which marketing partners deliver communications to Users.
Terminating a User account will stop the delivery of communications from Tuesday Morning but will not stop the delivery of communications from marketing partners for which a User has requested to receive communications by opting in through the Service. To stop receiving communications from a particular marketing partners, the User must contact that marketing partner directly.
CONTESTS AND PROMOTIONS
You acknowledge and agree that if Tuesday Morning disables access to your account, you may be prevented from accessing the Service, your account details or any files or other Content or User Content, which is contained in your account. Tuesday Morning reserves the right to suspend and/or terminate the account of any User that violates this TOU.
You may stop using the Service at any time and are under no obligation to inform Tuesday Morning when you stop using the Service. In addition, you may terminate your account at any time by contacting Tuesday Morning at custserv@TuesdayMorning.com.
As part of on-going innovation and development of the Service, we may change, suspend or discontinue the Services at any time, including the alteration, suspension or termination of any feature or features of the Site for maintenance, upgrades or other reasons. We may, at any time and in our sole discretion, impose limits and/or conditions on your use of the Site, and/or restrict your access to all or part of the Site, without notice or liability. We may remove any Content and suspend, restrict or terminate any account at any time for any reason, or for no reason at all.
TRADEMARKS, COPYRIGHTS & RESTRICTIONS
The Site is the property of Tuesday Morning and its licensors and is protected from unauthorized copying and dissemination by copyrights and other intellectual property rights that are owned or licensed by Tuesday Morning under copyright law, trademark law, patent law, international conventions and other intellectual property laws.
"TuesdayMorning.com", "Tuesday Morning", and other Tuesday Morning graphics, logos, designs, page headers, button icons, scripts, and service names are trademarks, service marks and/or trade dress of Tuesday Morning which may be registered under the applicable laws of the United States and other countries or otherwise protected under common law. All other logos or product names are trademarks or registered trademarks of their respective owners. Tuesday Morning's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.
You may not reproduce, perform, create derivative works from, republish, upload, post, transmit, or distribute in any way whatsoever any Content from the TuesdayMorning.com domain, its sub-domains, or any other website owned or operated by Tuesday Morning without the prior written permission of Tuesday Morning.
Tuesday Morning does not claim ownership of the materials you submit to the Site and/or make available as part of your User profile, including, but not limited to, your User Content.
CONTENT, THIRD PARTY CONTENT, INTERACTIONS AND LINKS TO OTHER SITES
In many instances, the Content available through this Site represents the opinions and judgments of the respective information provider, including manufacturers and promoters of various goods and services that Tuesday Morning may promote on the Site or in its stores, or other parties not under contract with Tuesday Morning. Tuesday Morning neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on the Site by anyone other than authorized Tuesday Morning employee spokespersons while acting in official capacities. Under no circumstances will Tuesday Morning be liable for any loss or damage caused by a User's reliance on information obtained through the Site. It is the responsibility of User to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice or other Content available through the Service.
The Site may contain links to other Web Sites ("Linked Sites") and third-party content, including various social media sites, including Facebook, Twitter, and YouTube. We provide these links as a convenience to you. The Linked Sites are not under the control of Tuesday Morning and Tuesday Morning is not responsible for the contents of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. Tuesday Morning is not responsible for webcasting or any other form of transmission received from any Linked Site. Tuesday Morning is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Tuesday Morning of the site or any association with its operators. Accordingly, Tuesday Morning hereby expressly disclaims any representations regarding the content or accuracy of materials on such third party websites. When a User leaves our Site, you should be aware that our terms and policies no longer govern. A User should review the applicable terms and policies, including privacy and data gathering practices, of any site to which the User navigates from this Site. If a User decides to access linked third-party websites, the User does so at its own risk.
SOCIAL NETWORKING APPLICATIONS
Tuesday Morning may use application programming interfaces (APIs) provided by various social networking applications including, without limitation, Facebook.com or Twitter.com ("Social Networks"). By using this Service, you grant Tuesday Morning the right to use and display your Social Network profiles, including your profile picture, for viewing by Tuesday Morning, our marketing partners and other Users on the Site. In addition, by use of Social Networks with the Tuesday Morning Service, you automatically grant, and you represent and warrant that you have the right to grant, the Service the right to use, display and store any information gathered about you from Social Networks.
By using this Service, you warrant that all information in your Social Network accounts is true. Specifically, you are prohibited from using Social Network features included in the Service if any of your Social Network accounts does not contain your personal name or if you have multiple accounts with any particular Social Network.
Tuesday Morning has adopted the below policy toward copyright infringement in accordance with the Digital Millennium Copyright Act, 17 U.S.C. 512(c) (available at: http://lcweb.loc.gov/copyright/legislation/hr2281.pdf). If you do not have Adobe Acrobat Reader, please download a free version here.
The address of Tuesday Morning's Designated Agent to Receive Notification of Claimed Infringement is listed at the end of this section.
Tuesday Morning will (1) block access to and/or remove any material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our Users, whether or not they have a registered account with Tuesday Morning; and (2) permanently remove and discontinue service to any repeat offender. This policy shall cover all aspects of the Services provided by Tuesday Morning.
Procedure for Reporting Copyright Infringements:
If you believe that material or content residing or accessible on the Tuesday Morning Site or Service infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent to Receive Notification of Claimed Infringement listed below. Note that failure to comply with all or any requirements of this section may render your report or notice invalid.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Tuesday Morning is capable of finding and verifying its existence;
- Contact information about the notifying party including address, telephone number and, if available, e-mail address;
- A statement that the notifying party has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Once the infringement notification is received by the Designated Agent:
- Tuesday Morning will remove or disable access to the infringing material;
- Tuesday Morning will then immediately notify the User that it has removed or disabled access to the material;
- First time offenders will have the infringing material removed from the system;
- Repeat offenders will have the infringing material removed from the system and Tuesday Morning may immediately terminate such User's access to the TuesdayMorning.com Services.
The alleged infringing User may supply a counter-notice to the Designated Agent that must include the following:
- A physical or electronic signature of the User;
- Identification of the material that has been removed, or to which access to has been disabled, and the location at which the material appeared before it was removed or disabled;
- A statement under penalty of perjury that the User has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
- User's name, address and telephone number and a statement that User consents to the jurisdiction of the Federal Court for the judicial district in which the User's address is located, or if the User's address is located outside the United States, for any judicial district in which Tuesday Morning is located, and that User will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, a copy of the counter-notice will be sent to the original complaining party informing that person that it will replace the removed material or cease disabling it within 10 business days. Unless the copyright owner files an action seeking a court order against the User, the removed material will be replaced, or access to it restored, within 14 business days after receipt of the counter-notice.
Please contact Tuesday Morning's Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement: Attn: Copyright Agent
Notification of Claimed Copyright Infringement
Tuesday Morning, Inc.
address: 6250 LBJ Freeway
Dallas, Texas 75240
Phone: 972-387-3562 x 7187
Email to: copyright@TuesdayMorning.com
False Notifications of Claimed Infringement or Counter Notifications.
The Digital Millennium Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Tuesday Morning] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. [17 U.S.C. 512(f)]
Tuesday Morning reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this section should be sent to the Designated Agent at firstname.lastname@example.org if you have any copyright issues and would like to email Tuesday Morning.com or to the postal address identified above. Any other comments, compliments, complaints or suggestions about Tuesday Morning, the operation of the Site or Services or any other matter should be sent to custserv@TuesdayMorning.com.
Tuesday Morning does not control or endorse the User Content, messages or information provided or posted by other Users, and, therefore, Tuesday Morning specifically disclaims any liability resulting from such User communications and postings, including liability arising from any objectionable Content. Generally, any User Content or communications which Users post to the Site is considered to be non-confidential. By posting comments, messages or other information on the Site or any microsite, a User grants Tuesday Morning the right to use such content, messages or information for promotions, advertising, market research or any other lawful purpose without territorial, time or other limitation.
DISCLAIMERS AND ACKNOWLEDGMENTS
Tuesday Morning's Services and Site may contain facts, views, opinions, statements, and recommendations of third party individuals and organizations. Tuesday Morning does not represent as to, warrant, or endorse the accuracy, timeliness, or reliability of any advice, opinion, statement, recommendations, or other information displayed, uploaded, or distributed through the Site or the Services. You acknowledge that any reliance on any such advice, opinion, statement, recommendations, or other information will be at your sole risk.
By using the Services, you acknowledge that the materials on the Site are provided on an "AS IS" basis and without express or implied warranties of any kind, including, but not limited to, warranties of title, implied warranties of merchantability, fitness for a particular purpose or non-infringement. Tuesday Morning makes no warranty as to the quality, accuracy, completeness, and validity of any materials on the Site and does not warrant that the functionality contained on the Site will be uninterrupted or error-free, that defects will be corrected, or that this Site or the server(s) that make it available are free of viruses or other harmful components.
Tuesday Morning shall have the right, but not the obligation, to monitor the content of the Site and any microsites at all times, including any interactive features that may hereinafter be included as part of the Site or Service, to determine compliance with this TOU and any operating rules established by Tuesday Morning, as well as to satisfy any applicable law, regulation or authorized government request.
You acknowledge that Tuesday Morning may or may not pre-screen Content, but that Tuesday Morning and its designees shall have the right, but not the obligation, in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Service. Without limiting the foregoing, Tuesday Morning and its designees shall have the right to remove any Content that violates this TOU or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content accessed on, created on, submitted to or sent from the TuesdayMorning.com domain.
You understand that the technical processing and transmission of the Service and Content, including your User Content, may involve (a) transmissions over various networks, and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
By using or accessing the Site, you agree to indemnify, defend and hold harmless Tuesday Morning, its officers, directors, employees, successors, agents, stockholders, consultants and affiliates for any and all claims, damages, losses and causes of action (including attorneys' fees and court costs) arising out of or relating to your breach or alleged breach (or the breach or alleged breach of any third party using your account) of this TOU, use of the Services, or access to the Site (including, without limitation, claims made by third parties for infringement of intellectual property rights). You agree to cooperate as fully as reasonably required in Tuesday Morning's defense and/or settlement of any claim. Tuesday Morning reserves the right to assume exclusive control over the defense and settlement of any matter subject to indemnification by you. If you use a Social Media Account to register for or otherwise access any of the Tuesday Morning Services, you agree to fully release and hold harmless such social media service provider or other authentication provider to the same extent as Tuesday Morning.
EXCLUSION OF DAMAGES
Neither Tuesday Morning, nor its officers, directors, employees, consultants, agents, successors, or affiliates are responsible or liable for any special, incidental, consequential, punitive or other indirect damages or for the loss of employment, profits, data or loss of use damages, that result from the use of, or the inability to use, this Site or the Service or the information contained on this Site or in the Service, even if Tuesday Morning or one or more of the foregoing has been advised of the possibility of such damages.
LIMITATION OF LIABILITY
In no event will Tuesday Morning's total liability to you from all damages, losses, and causes of action resulting from your use of this Site or the Service, whether in contract, tort, (including, but not limited to, negligence), strict liability or otherwise, exceed the greater of Fifty Dollars ($50) or the price you actually paid Tuesday Morning for the Service in the sixty (60) days prior to the event giving rise to the liability.
JURISDICTION, VENUE AND ARBITRATION
Tuesday Morning operates the Site from its offices within the United States. Tuesday Morning makes no representation that information on this Site is appropriate or available for use outside the United States. Those who choose to access this Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. This TOU is governed by the laws of the State of Texas, excluding conflicts of law principles. Any legal actions against us must be commenced within one year after the claim arose. You consent to the exclusive jurisdiction of the state and federal courts located in DallasCounty, Texas. Any controversy or claim arising out of or relating to the Site or this TOU will be settled by binding arbitration in accordance with the expedited commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in DallasCounty, Texas, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Costs of the arbitration shall be shared equally between the parties, provided that if you cannot afford to pay the arbitrators, you agree to give Tuesday Morning the option of paying the arbitrators. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by Texas law. Notwithstanding the foregoing, Tuesday Morning may immediately seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect its rights or property (including intellectual property rights).
No agency, partnership, joint venture, or employment is created as a result of this TOU and you do not have any authority of any kind to bind Tuesday Morning in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Tuesday Morning shall not be liable for any failure of the Site or Services or for performing its obligations hereunder where such failure results from any cause beyond Tuesday Morning's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this TOU is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this TOU shall otherwise remain in full force and effect and enforceable. This TOU is not assignable, transferable or sublicenseable by you except with Tuesday Morning's prior written consent. Tuesday Morning may transfer, assign or delegate this TOU and its rights and obligations without consent.
COMMENTS, COMPLAINTS AND QUESTIONS
We welcome your feedback about the Site. However, any comments, ideas, notes, messages, suggestions or other communications sent to the Site shall be and remain the exclusive property of Tuesday Morning and we may use all such communications in any manner, including reproducing, disclosing and publishing such communications, all without compensation to you. To the extent it is not possible or effective for you to transfer any interest you have in the foregoing feedback hereby, you hereby grant Tuesday Morning the perpetual, irrevocable, worldwide, royalty free and fully transferable and sub-licensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, publicly display and otherwise exploit such feedback (in whole or in part) for any purpose.
Should you have any questions or concerns regarding this TOU, please email us at custserv@TuesdayMorning.com or contact us at the following address:
Tuesday Morning, Inc.
6250 LBJ Freeway
Dallas, Texas 75240