Terms  of Service.

Welcome to BrandHabit.com! BrandHabit, Inc. ("BrandHabit," "we," or "us") provides online designer fashion shopping services (collectively, the "Services") to users ("you" or "user") through our website accessible at www.BrandHabit.com (the "Site"). Please read the following important terms and conditions ("Terms of Service") carefully. These Terms of Service and our Privacy Policy, incorporated herein by reference, govern your access to and use of the Site, including any content, information, products or Services therein. This is a legal agreement between you and BrandHabit.

Whether you register with BrandHabit as a "Preferred Shopper" ("BrandHabit Preferred Shopper") or just peruse the Site as a non-registered user who just likes to shop, this Terms of Service applies to you.

YOU UNDERSTAND THAT BY CLICKING THE "I AGREE" BUTTON, OR BY USING THE SITE, SERVICES (INCLUDING ANY CONTENT PROVIDED THEREIN), OR YOUR ACCOUNT, YOU ARE AGREEING TO BE BOUND BY THIS TERMS OF SERVICE. YOU MUST ACCEPT, WITHOUT MODIFICATION, ALL OF THE TERMS, CONDITIONS, POLICIES AND NOTICES REFERENCED IN THIS TERMS OF SERVICE IN ORDER TO ACCESS AND USE THE SITE AND SERVICES. IF YOU DO NOT ACCEPT THIS TERMS OF SERVICE IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES.

  1. Modification of the Site or Terms of Service. BrandHabit reserves the right, in its sole discretion, at any time, and for any reason or no reason, to (i) modify, discontinue or terminate the Site and Services, or (ii) modify these Terms of Service or any related terms and conditions governing your use of the Site and Services at any time without notice. All modified terms and conditions will be effective after they are initially posted on the Site (unless a longer notice period is required by applicable law). If any modified terms and conditions are not acceptable to you, your only recourse is to cease using the Site and Services, and if applicable, cancel your Membership (as defined below). By continuing to access or use the Site and Services after BrandHabit makes any such revision, you agree to be bound by the revised Terms of Service.

  2. Membership and Account Access.

    1. In order to access many of the Services on the Site you must register with us as a BrandHabit Preferred Shopper (the "Membership"). BrandHabit Preferred Shoppers have the opportunity to make certain information and content available to users of the Site in the "My Fashion Habit" page they create, including, but not limited to, photographs, comments and lists of their retailer and designer favorites "Content".

    2. Membership is available to persons who are at least 18 years of age or are otherwise capable of forming legally binding contracts under applicable law. If you become a BrandHabit Preferred Shopper, you will set up a BrandHabit account ("Account"), with a corresponding user name and password. Your user name and password will permit you to access certain secure areas of the Site only available to BrandHabit Preferred Shoppers.

    3. You are responsible for safeguarding and maintaining the confidentiality of your user name, password and corresponding Account information. You agree not to disclose your password to any third party. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You agree to immediately notify BrandHabit of any unauthorized use of your Account or any other breach of security known to you. In the event that your user name and/or password is lost or stolen, please notify BrandHabit immediately so that a new user name or password can be created.

    4. If you become a BrandHabit Preferred Shopper, you will provide true, accurate and complete registration information and shall maintain as current and promptly update relevant personal contact information provided to BrandHabit. You will not use false identities or impersonate any other person or use a name that you are not authorized to use.

    5. If you become a BrandHabit Preferred Shopper and create an Account, you consent to the use of: (a) electronic means to complete these Terms of Service and to provide you with any notices given pursuant to these Terms of Service; and (b) electronic records to store information related to these Terms of Service or your use of the Site and Services.

  3. Your Obligations in Using the Site and Services. The Site and Services may only be used and accessed for lawful purposes. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services. In addition, without limitations, you agree to comply with the following:
    1. You may not use the Site or Service (i) to transmit "junk mail", "chain letters", "spam" or unsolicited commercial email messages the primary purpose of which is the commercial advertisement or promotion of a commercial product or service; or (ii) to send messages to distribution lists, newsgroups, or to recipients who do not know you or who are unlikely to recognize you as a known contact.

    2. You will not use the Site or the Service to promote any products or services, or to provide any products or services related to, claiming success with or offering information regarding lottery numbers or for purposes of multi-level marketing proposals (for example, offering to help participants "get rich quickly" or "make money surfing the Web"). You will not use the Site to promote bonus items, giveaways, random drawings, prizes, contests or games of chance.

    3. You will not use the Site or Services for any purpose that is unlawful, fraudulent or contrary to this Terms of Service and the policies of BrandHabit, and you will cooperate fully with BrandHabit to investigate any suspected unlawful, fraudulent or improper activity, including, but not limited to, granting authorized BrandHabit representatives access to any password-protected portions of your Account.

    4. You may not use the Site or Services to upload, post, e-mail, otherwise transmit, or post links to: (i) any unsolicited or unauthorized advertising or promotional materials; or (ii) content which is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, or racially, sexually, ethnically or otherwise objectionable.

    5. You may not intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature using the Site or Services.

    6. You may not impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent yourself or the source of any email.

    7. You are solely responsible for all equipment necessary to access and use the Site and Services.

    8. You will not attempt to gain unauthorized access to any Account information, computer systems or networks associated with the Site and Services.

    9. You will not attempt to obtain any information or materials relating to the Site and Services through any means not intentionally made available through the Site.

    10. You will not "frame," "mirror" or otherwise copy any portion of the Site without BrandHabit's express written authorization.

    11. You will not encourage or instruct any other individual to do any of the foregoing or to violate any term of this Terms of Service.

  4. Third Party Data Usage.

    1. There may be instances where you provide BrandHabit with information about third parties which could include such third parties' contact information. For example, you may want to email your friends and family through your Account and tell them about your fashion and designer favorites of the moment. To the extent that you have provided BrandHabit with the personally identifiable information including, but not limited to, the name and email address ("Personal Information") of a third party, you represent and warrant that: (a) you have retained informed consent from such third parties as to the sharing and disclosure of their Personal Information; and (b) you are in compliance with all laws with regard to the sharing of disclosure of such third party's Personal Information.

  5. Termination; Cancellation.

    1. You may terminate your Account with us or cancel your Membership at any time and for any reason by sending an email to . Upon any termination by a BrandHabit Preferred Shopper, their Content, and the My Fashion Habit page related thereto, will be removed from the Site and the related Account will no longer be accessible. Any Account cancellation request will be handled within seventy-two (72) hours of receipt of such a request by BrandHabit.

    2. We may immediately terminate or suspend your Membership and Account and access to the Site and Services, in the event that you breach these Terms of Service. Notwithstanding the foregoing, we also reserve the right to terminate the Site, Services or your access thereto at any time and for any reason. After such a termination, you understand and acknowledge that we will have no further obligation to provide the Services or to make your Content, or My Fashion Habit page related thereto, available through the Site (as applicable). Upon termination, all licenses and other rights granted to you by these Terms of Service will immediately cease.

    3. Any suspension, termination or cancellation shall not affect your obligations to BrandHabit or the BrandHabit Entities under these Terms of Service (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.

  6. Intellectual Property Rights and Ownership.
    1. You acknowledge and agree that BrandHabit owns or licenses all right, title and interest, including without limitation all intellectual property rights, and all derivative works or enhancements thereof, relating to the Site and Services, including but not limited to all information, content, materials, products, services, URLs, other software, technology, editorial or user guidelines, and documentation, developed in whole or in part by, with or for BrandHabit. You shall not acquire any right, title or interest therein to any content provided by BrandHabit, except for the limited use rights expressly set forth in these Terms of Service. Any rights not expressly granted herein are withheld.

    2. Notwithstanding the foregoing, and in connection with your use of the Site and Services, you hereby grant (or warrant that the owner of such rights has expressly granted) to BrandHabit a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sublicensable right and license to use, copy, adapt, publish, transmit, distribute, perform, display, reference, index and cache, in any form, medium or technology now known or later developed on the Site or the sites of BrandHabit's affiliates, distribution partners or third-party service providers, your Content and any materials you submit to BrandHabit, in whole or in part, whether created by or for you, to provide the Site and Services to you and to perform our obligations under these Terms of Service. Excluding your Content, you shall and hereby do assign to BrandHabit all right, title and interest in and to any part of the Site and Services that you may have or acquire. In addition, you warrant that all so-called moral rights in your Content have been waived.

  7. Copyrighted Materials and Trademarks: No Unauthorized Use.

    YOU SHALL NOT USE THE SITE OR ITS SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS, TRADEMARKS, OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

    BrandHabit has adopted and implemented a policy, stated below, that provides for the termination in appropriate circumstances of BrandHabit Preferred Shoppers who infringe or are believed to be infringing the rights of copyright holders or of holders of federally registered trademarks (and unregistered trademarks in certain circumstances).

    The BrandHabit Copyright and Trademark Related Policy is as follows:

    If you believe that your work has been copied in a way that constitutes copyright infringement, please provide BrandHabit's Copyright Agent listed below with the following information required under 17 U.S.C. § 512:

    1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

    2. Identification of the copyright 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 the Site;

    3. 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 BrandHabit to locate the material;

    4. Information reasonably sufficient to permit BrandHabit to contact the complaining party, including a name, address, telephone number and, if available, an email address at which the complaining party may be contacted;

    5. 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

    6. 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.

    Upon receipt of notice as described above, BrandHabit will confirm the existence of the federal registration of the trademark in question and will take whatever action, in its sole discretion, it deems appropriate, including following confirmation of the existence of the federal registration, removal of the challenged use from the Site, with notice to the BrandHabit Preferred Shopper in question, if, in BrandHabit's sole discretion, BrandHabit concludes that the mark or name is identical to the registered mark and is used in connection with goods and/or services covered by the trademark owner's federal registration, unless, prior to such removal, the BrandHabit Preferred Shopper in question demonstrates that it has its own trademark registration or approved trademark application covering the use in question.

    Notwithstanding the foregoing, BrandHabit will comply as appropriate with the terms of any court order relating to the behavior of the challenged party identified in such court order.

    BrandHabit's Copyright Agent for notice of claims of copyright infringement on or regarding this Site can be reached as follows:

      Copyright Agent
      c/o BrandHabit, Inc.
      Address: 588 Sutter Street, Suite 523, San Francisco, CA 94102
      Phone: 415-488-1712
      Fax: 415-532-2330
      Email:

  8. Use of Third Party Services. The Site and Services may contain information, products, and services, provided by third parties and links (including advertisements) to web sites made available by third parties ("Third-Party Offerings"). This information and these products, services, and links are provided only as a convenience to users of the Site. BrandHabit does not control these Third-Party Offerings and does not make any representations or warranties, express or implied, regarding these Third-Party Offerings. Inclusion of any of the Third-Party Offerings in the Site or Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with BrandHabit with respect to any third party or its Third-Party Offerings and you access and use such Third Party Offerings at your own risk.

  9. Representations and Warranties. You represent and warrant that: (a) you have full power and authority to enter into these Terms of Service; (b) the execution of these Terms of Service, and the performance of your obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which you are a party or violate any rights of any third parties arising therefrom; (c) you have and will maintain throughout your use of or access to the Site and Services all rights, authorizations, consents and licenses that are required with respect to, and in order to submit, your Content to the Site and permit BrandHabit to post, perform and display such Content, perform its services and provide access to and use of the Site and Services as contemplated under these Terms of Service, which rights, authorizations, consents and licenses have been obtained and will be maintained in compliance with all applicable laws, rules and regulations and without violating any rights or interests of any third party; (d) your Content does not violate any law or regulations and you will use the Site and Services and any information provided to you by BrandHabit in a manner that complies with applicable laws; (e) you have full technical and editorial control of your Content; (f) your Content does not and will not, directly or indirectly, infringe any copyright, trademark, United States patent, trade secret right, moral right, rights of publicity or privacy, or any other intellectual property or proprietary right of a ny third party; (g) you have obtained any and all necessary and appropriate publicity releases from any third party appearing in your Content; (h) your Content does not and will not in any way violate any laws relating to consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; and (i) your Content (or any material used in your Content) will not contain any "back door," "trap door," "time bomb," "Trojan Horse," "worm," "drop dead device," "Easter Eggs," "cancelbots" or other computer programming routines or viruses that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit access to or use of the Site and Services or other software or hardware by unauthorized parties, or disable, damage or erase any portion of the Site or content processed or stored therein.

  10. Disclaimers.
    1. YOU EXPRESSLY AGREE THAT YOUR USE OF OR INTERACTION WITH THE SITE, SERVICES, SITE CONTENT, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE, IS AT YOUR OWN RISK AND AT YOUR OWN DISCRETION. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SITE, SERVICES, SITE CONTENT, INFORMATION AND OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE AND YOUR USE THEREOF, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
    2. BRANDHABIT AND THE BRANDHABIT ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE RELATED TO THE SITE, SERVICES, SITE CONTENT OR THESE TERMS OF SERVICE. BRANDHABIT MAKES NO WARRANTY THAT: (A) THE SITE, SERVICES, OR SITE CONTENT WILL MEET YOUR REQUIREMENTS; (B) THE SITE, SERVICES OR SITE CONTENT WILL OPERATE OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE QUALITY OF THE SITE, SERVICES, SITE CONTENT, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE AND SERVICES WILL MEET YOUR EXPECTATIONS.
    3. BRANDHABIT SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE, SERVICES, SITE CONTENT, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE AND SERVICES. Some jurisdictions do not allow the exclusion of warranties, so some of the above exclusions may not apply to you.

  11. Limitation of Liability.
    1. UNDER NO CIRCUMSTANCES WILL BRANDHABIT, ITS LICENSORS, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE EMPLOYEES OR AGENTS BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS AND SERVICES, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, OR YOUR ACCESS TO OR USE OF THE SITE, SERVICES, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE, INCLUDING AS APPLICABLE ANY DAMAGES RESULTING FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SITE OR SERVICES IN ANY MANNER WHATSOEVER, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT BRANDHABIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitation or exclusion may not apply to you.

    2. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRANDHABIT'S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS OF SERVICE AND YOUR ACCESS TO AND USE OF THE SITE AND SERVICES WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). BRANDHABIT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OF OR ERRORS RELATED TO THE SITE OR SERVICES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so some of the above limitations and exclusions may not apply to you.

  12. Indemnity
    1. You agree to indemnify, defend and hold BrandHabit and its officers, directors, employees, successors, agents, affiliates, distribution partners or third-party service providers (collectively, the "BrandHabit Entities") harmless from and against any claims, liabilities, losses, damages or expenses (including reasonable attorneys' fees and costs) arising out of or in any way connected with: (a) your Content or any materials in any form whatsoever that are provided by you or through use of your Account; (b) your conduct, including your access to or use of the Site or Services; (c) any actual or alleged violation or breach of these Terms of Service or any BrandHabit policies; (d) any breach of any representation or warranty you made hereunder, including but not limited to any to claims relating to a violation of a third party's intellectual property rights or BrandHabit's determination that your Content was obscene, defamatory, libelous, slanderous or threatening; (e) your violation of rights of privacy, publicity, confidentiality or property; or (f) any actual or alleged violated of any applicable law or regulation. You agree that you are solely responsible for defending any such claim as set forth above, and for payment of losses or damages suffered by, or awarded to, and costs and expenses incurred by, third parties and the BrandHabit Entities resulting from the foregoing. You agree that you will not enter into any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) brought against you or BrandHabit, if such settlement or resolution results in any obligation or liability for BrandHabit.

    2. You agree that BrandHabit shall have the right, in its sole discretion, to select its own legal counsel to defend BrandHabit from any such claim (but by doing so shall not excuse your indemnity obligations) and that you shall be solely responsible for the payment of all BrandHabit's reasonable attorneys' fees incurred in connection therewith.

    3. You agree to notify BrandHabit immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges pertaining to your Content or that could affect either party's ability to fully perform its duties or to exercise its rights under these Terms of Service.

  13. Miscellaneous Provisions.
    1. No Assignment. You shall not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of BrandHabit. Any such purported assignment or delegation by you without the appropriate prior written consent of BrandHabit shall be null and void and of no force and effect. BrandHabit may assign these Terms of Service or any rights hereunder without your consent.

    2. Relationship of the Parties. BrandHabit acts as an interface to facilitate publication of content and fashion industry oriented information. For purposes of these Terms of Service, including if you become a BrandHabit Preferred Shopper and create an Account, you are not an employee, agent or contractor of BrandHabit, and you shall not represent that you are any of the foregoing. Each party shall be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and shall not bind or attempt to bind the other to any contract. Each party shall be solely responsible for their own costs and expenses incurred in the performance of their obligations under these Terms of Service, including, without limitation, any expenses associated with the implementation of these Terms of Service.

    3. Severability and Waiver. In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of BrandHabit to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.

    4. Force Majeure. BrandHabit shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to BrandHabit's infrastructure or connectivity to the Internet, or failure at BrandHabit's co-location facility, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, BrandHabit will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.

    5. Governing Law. The Terms of Service and the relationship between you and BrandHabit shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and BrandHabit agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California.

    6. Entire Agreement. These Terms of Service are the entire and exclusive agreement between BrandHabit and you regarding the Site, Content, and Services, and supersede and replace any prior agreements between BrandHabit and you regarding the Site and Services.

    7. Notice. Any notice or other communication to be given hereunder will be in writing and given (a) by BrandHabit via email (in each case to the address that you provide), (b) a posting on the Site, or (c) by you via email to or to such other addresses as BrandHabit may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.

    8. Questions. If you have questions about these Terms of Service or would like to request a copy of these Terms of Service or any other records relating to these Terms of Service of your use of the Site and Services, please contact BrandHabit at or by sending a written request to BrandHabit, Inc. at 588 Sutter Street; Suite 523; San Francisco, CA 94102.

© 2006-2007 BrandHabit, Inc. All rights reserved.



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