Terms & Conditions of Use

Last Updated June 4th, 2010.

Welcome to simmonsjewelryco.com. This website is owned and operated by Simmons Jewelry Co. Please read these Terms and Conditions of Use carefully before using or obtaining any content, products, or services through this website.

Access to and use of this Website is subject to acceptance of the Terms and Conditions of Use set forth below (the "Terms"), which includes our Privacy Policy. By accessing, using or obtaining any content, products, or services through this Website, you agree to be bound by these terms. If you do not accept all of these terms, then you should not use this Website.

1. DEFINITIONS

In this document, the following defined terms shall have the following corresponding meanings.

"Content" means the text, documents, information, data, articles, images, photographs, graphics, software, applications, video recordings, audio recordings, sounds, designs, features, and other materials that are stored or otherwise available on the Website. "Content" also includes Marks and Products and Services, as well as all Communications and Materials.

“Communications and Materials” means all comments, narrative works, images and other data and information posted by or otherwise contributed or communicated to this website by you.

"Mark" means Simmons Jewelry, simmonsjewelry.com, and any other trademark, trade name, service mark, trade dress, logo, brand or other identifying mark proprietary to, or licensed to, Simmons Jewelry.

"Member" means an individual who has registered with the Website.

"Member ID" means the e-mail address a Member uses (with his or her password, if any) to login to our Website as a Member.

"Products and Services" means all goods and services offered for sale on the Website from time-to-time.

"Provider" means Simmons Jewelry’s licensors, suppliers, information providers, and service providers.

"Simmons Jewelry," "we," “us” and “our” means Simmons Jewelry Co., the owner and operator of the Website, together with its affiliates.

"Website" means this website, together with the respective Content, Marks, Products and Services available from this Website, as well as the software used to operate the Website.

2. SCOPE AND TERMS

Website

These Terms govern your use of this Website and all Content, Products or Services available through the Website. You agree to be bound by these Terms, and to use the Website in strict compliance with all applicable laws, rulings and regulations, and in a manner that does not negatively reflect on the goodwill or reputation of Simmons Jewelry and its Providers.

Additional Terms

Additional terms may apply when you purchase Products or Services. For example, if you purchase a Product manufactured or sold by a third party, the manufacturer’s or third party seller’s warranties may apply to that Product. You agree to abide by the terms and conditions imposed by any Provider, including payment of all amounts when due, and compliance with all rules and restrictions regarding the availability of Products or Services.

Age Restriction

Minors (as defined under the laws of their jurisdiction or residence) are not eligible to register for or use the Products or Services available on the Website. The Website is not intended for children. If you are under 13 you should not access this Website or provide to us any identifying information about yourself.

Responsible Party

You are responsible for maintaining the secrecy of your password, if any, and other aspects of your Member ID. In addition, you will be financially accountable for all use of our Website by you and anyone using your password and login information.

Changes

These Terms were last changed on the date set forth above. Simmons Jewelry may modify these Terms at any time and such modification shall be effective upon posting by Simmons Jewelry on the Website.

USE OF THE WEBSITE

License

Simmons Jewelry grants you a limited, personal, nontransferable, non-sublicensable, revocable license to access and use the Website only as expressly permitted in these Terms. Except for this limited license, we do not grant you any other rights or license with respect to this Website or our Marks. Any rights or license not expressly granted herein are reserved. Unless we have granted you permission in advance and in writing, you may use the Website only for your personal, non-commercial use, and not to provide services to a third party.

No Copy, Distribution, or Sale

You may download, display, or print a limited number of copies, but not more than ten copies, of any portion of the Content displayed on the Website. If you do so, you may not modify the Content in any way and must retain all proprietary marks, such as the © symbol, found on such Content. The above limitations, and those set forth below, do not apply to Communications and Materials that you have personally authored. There are no limitations on what you can do with your own Communications and Materials so long as your use does not interfere with Simmons Jewelry’s rights set forth below in Section 5, Intellectual Property.

Except as provided above, you may not:

Other Limitations

Unless otherwise provided within these Terms, or unless specific applicable law requires Simmons Jewelry to allow you to do so, you may not do any of the following without the prior written consent of Simmons Jewelry:

Termination

Simmons Jewelry, in its sole discretion, may, at any time and without advance notice or liability, terminate or restrict your access to all or any component of our Website, even if access continues to be allowed to others. Upon such termination or suspension, you must immediately discontinue use of the Website, and destroy any copy you have made of any portion of the Website. Accessing the Website after such termination, suspension, or discontinuation shall constitute an act of trespass. Simmons Jewelry shall not be responsible to you for such suspension or termination.

Changes

Any aspect of the Website may be changed, supplemented, deleted, updated, discontinued, suspended, or modified at any time, and without prior notice to you. However, we make no commitment to update the information contained on this Website. You agree that Simmons Jewelry shall not be liable to you for any delay or other damages that might result from such modification, suspension, or discontinuance.

3. PRIVACY AND SECURITY

Privacy

Your use of the Website is subject to our Privacy Policy. You agree that you have read our Privacy Policy, and it is reasonable and acceptable to you.

Security

We make reasonable attempts to exclude viruses and other malicious code from the Website, but cannot ensure that the Website will be at all times free from viruses or other destructive software, such as trojan horses, tapeworms and the like. You are urged to take appropriate safeguards before downloading Content or other information or data from the Website. We assume no responsibility for any damages to computer equipment or other property that may result from use of the Website or downloading anything from the Website. YOU ACKNOWLEDGE THAT YOU USE THE WEBSITE AT YOUR OWN RISK.

You acknowledge that computer systems and the transmission of data via the Internet are inherently insecure, and no amount of security can guarantee that data stored on computers or transmitted via the Internet will not be improperly accessed, used, altered or otherwise tampered with by others. Simmons Jewelry has implemented what we consider to be commercially reasonable technical and organizational measures designed to secure your Identifying Information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third-parties will never be able to defeat those measures or use information provided by you for improper purposes. YOU ACKNOWLEDGE THAT YOU PROVIDE INFORMATION AND STORE DATA ON THE SITE AT YOUR OWN RISK.

4. SERVICES AND CONTENT

Availability

We will use our reasonable commercial efforts to keep our Website available on a 24-hour/7-day-a-week basis, subject to necessary scheduled down-time for maintenance, unscheduled maintenance, and system outages. We cannot promise that access to the Website will be uninterrupted or available at all times. We assume no liability or responsibility for any delay, interruption, or down-time.

Content

The Content is intended for informational purposes only. Although we exercise reasonable efforts to ensure its quality and accuracy, there might be errors, or the information provided may not be complete, current, or applicable to your particular situation. Further, information provided regarding the service, amenities, products, etc. have in some cases been provided to us by the third-party vendor. We assume no liability or responsibility for any errors or omissions in such Content. You are responsible for evaluating the accuracy, completeness, and usefulness of any opinion, advice, or other Content available through the Website.

Your Comments and other Submissions

Any Communications and Materials you transmit to Simmons Jewelry, whether through the Website, by electronic mail or otherwise will be treated as non-confidential and non-proprietary. By making Communications and Materials available on the Website, you represent and warrant that:

Prohibited Content

Simmons Jewelry may delete any Content that in the sole judgment of Simmons Jewelry violates these Terms of Service or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person or for any other reason at Simmons Jewelry’s sole discretion. Please choose carefully the Content you post on the Website and that you provide to other users. Any Content you post on the Website may not include photographs, videos, sound and/or any other materials that, in the sole and absolute discretion of Simmons Jewelry, contains nudity or any obscene, lewd, violent, harassing, defamatory, libelous, false, infringing, inflammatory, sexually explicit or otherwise objectionable subject matter, or Content the posting of which would otherwise violate these Terms of Service (“Prohibited Content”). Despite this prohibition, Simmons Jewelry cannot police all Content posted on the Website and, accordingly, information provided by other Website users may contain Prohibited Content and Simmons Jewelry assumes no responsibility or liability for this material. If you become aware of the posting of Prohibited Content or any other misuse of the Website Services by any person, please contact Simmons Jewelry at info@simmonsjewelryco.com.

The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the Website. Simmons Jewelry reserves the right to investigate and take appropriate legal action against anyone who, in Simmons Jewelry's sole discretion, violates this provision, including, without limitation, removing the offending communication from the Website and terminating the privileges of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of Simmons Jewelry:

  1. 1. is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group, individual or property;
  2. 2. harasses or advocates harassment of another person;
  3. 3. exploits people in a sexual or violent manner;
  4. 4. contains nudity, violence, or offensive subject matter or contains a link to an adult website;
  5. 5. promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
  6. 6. promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or video, or links to pirated music or video files;
  7. 7. involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
  8. 8. contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page);
  9. 9. furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to terrorism, making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
  10. 10. solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
  11. 11. involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
  12. 12. infringes or misappropriates any third party's patent, trademark, service mark, copyright, moral rights, trade secrets or other intellectual property; or
  13. 13. invades or violates any third party's right to privacy.

5. INTELLECTUAL PROPERTY

Ownership Rights

This Website (including the programming for the Website) and its Content is the sole and exclusive property of Simmons Jewelry or its licensors. Simmons Jewelry and its licensors retain all right, title and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) in the Website and its Content. The Website is protected by copyright, trademark, patent, trade secrets, unfair competition, and other laws of worldwide, through the application of local laws or international treaties. Any unauthorized use, reproduction or modification of this Website may violate such laws.

License

By voluntarily submitting to us, or by posting on the Website any Communications and Materials, you grant Simmons Jewelry a worldwide, non-exclusive, royalty free, perpetual, irrevocable, and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such Communications and Materials in any form, media or technology. This means you will not receive monetary compensation if we use Communications and Materials provided by your for commercial purposes, whether or not such use is facilitated by or otherwise conducted through the Website. We assume no responsibility for any Communications and Materials posted or submitted by you, or for the return or such Communications and Materials. We want your feedback and appreciate your ideas and suggestions, but we are unable to answer or otherwise respond to every comment individually.

6. DISCLAIMER OF WARRANTY

Simmons Jewelry and its Providers make no warranty of any kind regarding the Website, Content and any Products and Services, all of which are provided on an "as is" basis. Simmons Jewelry and its Providers expressly disclaim any representation or warranty that the Website will be free from errors, viruses or other harmful components; that communications to or from the Website will be secure and not intercepted; that the Products and Services and other capabilities offered from the Website will be uninterrupted; or that the Content or any Products and Services will be accurate, complete, timely or non-infringing. The fact that Simmons Jewelry is including or offering on the Website any Products and Services provided by a third-party Provider is not an endorsement or a recommendation of the particular Products and Services.

OTHER THAN THOSE WARRANTIES WHICH, UNDER THE LAWS APPLICABLE TO THESE TERMS, ARE IMPLIED BY LAWS, AND ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION, SIMMONS JEWELRY AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

7. LIMITATION OF LIABILITY

Subject to applicable law, use of this Website and its Content, Products and Services is at your sole risk. Products and Services made available on this Website and provided by third-party Providers are subject to conditions imposed by the Providers. Providers who furnish Products or Services through this Website are independent contractors, and not agents or employees of Simmons Jewelry. IN NO EVENT WILL SIMMONS JEWELRY OR ITS PROVIDERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THIS WEBSITE, THE ACTS OR OMISSIONS OF PROVIDERS WHO FURNISH PRODUCTS OR SERVICES THROUGH THIS WEBSITE, OR THE PRODUCTS OR SERVICES OFFERED BY PROVIDERS THROUGH THIS WEBSITE, INCLUDING, WITHOUT LIMITATION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (I) ANY USE OF, BROWSING OR DOWNLOADING OF ANY PART OF OUR WEBSITE OR CONTENT, (II) ANY FAILURE OR DELAY (INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS WEBSITE), OR (III) THE PERFORMANCE OR NON PERFORMANCE BY US OR ANY PROVIDER, OR (IV) ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, EVEN IF SIMMONS JEWELRY AND THE PROVIDER(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.

If, despite the limitation above, Simmons Jewelry or a Provider is found liable for any loss or damage which arises out of or is in any way connected with any of the occurrences described above in this Section 8, then Simmons Jewelry and the Providers' liability will in no event exceed, in total, the sum of US$250.00. This limitation of liability may not be permissible under the law of some states, so the limitations above may not apply to you.

8. INDEMNIFICATION

You agree to defend and indemnify Simmons Jewelry and any Provider, and each of their respective officers, directors, employees and agents from and against any claim, cause of action or demand, including without limitation reasonable legal and accounting fees, in excess of the liability described above, in any action filed or commenced by any third party against Simmons Jewelry or any Provider as a result of (1) your breach of these Terms, (2) your violation of any law or the rights of a third party or (3) your negligence or intentionally wrongful acts or omissions.

9. DISPUTES

The laws of the State of New York (USA), without regard to its conflict of law rules, will govern these Terms. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms or any Products and Services. If you take any legal action relating to your use of our Website, these Terms or the Products and Services, you agree to file such action only in the state and federal courts located in New York County, New York (USA). In any such action or any action we may initiate, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to costs, both taxable and non-taxable, and reasonable attorneys' fees and expenses.

10. General

Your acceptance of these Terms, and your use of the Website do not create a joint venture, partnership, employment, or agency relationship with us. You may not assign, delegate, or transfer your rights or obligations under these Terms. If we fail to act with respect to your breach or anyone else's breach of these Terms on any occasion, we are not waiving our right to act with respect to future or similar breaches. If a court finds any of these Terms to be unenforceable or invalid, that Term will be enforced to the fullest extent permitted by applicable law and the other Terms will remain valid and enforceable. The headings in these Terms are for your convenience and reference; they do not limit or affect these Terms. These Terms, together with those items made a part of these terms by reference, make up the entire agreement between us relating to your use of the Website, and replaces any prior understandings or agreements (whether oral or written) regarding your use of our Website.

11. PROVISIONS OF THESE TERMS AND CONDITIONS

Prior Terms and Conditions

These Terms supersede any prior Terms and Conditions relating to the use of the Website that were displayed on this Website before the date stated above.

Modifications

We may modify, revise or update these Terms and/or the Privacy Policy, at any time, by updating this posting. You should visit this page from time to time to review the then-current Terms and Privacy Policy, because they are binding on you. Your continued use of our Website, following the posting of conspicuous notice of any modification, will be subject to the Terms in effect at the time of your use.

Written documents

You may preserve these Terms in written form by printing them for your records, and you waive any other requirement that these Terms be evidenced by a written document.

Electronic Notification

To the extent that we may need to contact you, you agree that we may do so via any electronic means, including but not limited to communication posted on the Website, electronic mail, or instant messaging.

12. COPYRIGHT POLICY

You may not use the Website or any Products and Services to post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary materials belonging to others without obtaining the prior written consent of the owner of such proprietary materials. It is Simmons Jewelry’s policy to terminate privileges of any Member or other user of the Website who infringes the copyright of others upon receipt of prompt notification to Simmons Jewelry by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, please review and utilize our procedures for protecting your rights as set forth below.

In accordance with the Digital Millennium Copyright Act, 17 U.S.C. 512, Simmons Jewelry has adopted the policy described in this Section 13 concerning copyright infringement. Simmons Jewelry respects the legitimate rights of copyright owners and their agents and representatives. Members and others who use any part of the Website are required by these Terms to respect the legal protections provided by applicable copyright law.

Procedure for Reporting Copyright Infringements. If you believe that your work has been copied on this Website in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with the following information:

  1. a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  2. b. A description of the copyrighted work or other intellectual property that you claim has been infringed;
  3. c. A description of where the material that you claim is infringing is located on the Website (including the specific URL of each item in dispute, which should help us to quickly locate the allegedly infringing material);
  4. d. Your address, telephone number, and email address;
  5. e. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  6. f. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.

FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC URLS WHERE ALLEGEDLY INFRINGING MATERIALS MAY BE FOUND, WILL RESULT IN A DELAY OF THE PROCESSING OF THE DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.

Notice And Takedown. If Simmons Jewelry receives proper notification of claimed infringement, it will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. Simmons Jewelry will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.

Simmons Jewelry may, at its discretion, deny access to this Website by, or disable and/or terminate the accounts of, Members or other users who may be infringers.

Designated Agent. Notice of claims of copyright or other intellectual property infringement can be delivered as follows, by email, fax or standard mail:

Simmons Jewelry Co.
c/o Pryor Cashman LLP
7 Times Square
New York, NY 10036
Attn: Brad Rose
Fax: 212-798-6369
Email: brose@pryorcashman.com

Upon receipt of proper notification of claimed infringement, Simmons Jewelry will follow the procedures outlined herein and in the DMCA.

Copyright Counter-Notices. If materials you posted on the Website were removed for copyright or intellectual property infringement and you would like to dispute that removal, the process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act:

  1. a. To file a counter-notification with us, you must provide a written communication that sets forth the items specified below.
  2. b. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of Members and other users who are infringers. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney.

Elements of Counter-Notification. To expedite our ability to process your counter-notification, please use the following format (including section numbers):

  1. a. Identify the specific URLs of material that Simmons Jewelry has removed or to which Simmons Jewelry has disabled access.
  2. b. Provide your full name, address, telephone number, email address and, if you are a Member, the Member name of your Simmons Jewelry account.
  3. c. Provide a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or New York County, New York; if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to Simmons Jewelry in accordance with the process outlined above or an agent of such person.
  4. d. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
  5. e. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
    Simmons Jewelry Co.
    c/o Pryor Cashman LLP
    7 Times Square
    New York, NY 10036
    Attn: Brad Rose
    Fax: 212-798-6369
    Email: brose@pryorcashman.com

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the allegedly infringing material posted on the Website. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).

Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country or the United States if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination of access to the Website in appropriate circumstances for Members and other users who are infringers. So, if you are not sure whether materials you posted on the Website are being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”

DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.

13. CONTACT INFORMATION

If you have any questions or concerns about these Terms or if you need further assistance with respect to access to or use of the Website or the Services and Products offered by Simmons Jewelry, you may contact us as indicated below. We will attempt to respond to your questions or concerns promptly after we receive them.

E-mail: info@simmonsjewelryco.com
Mailing address: 462 Seventh Ave., 7th Floor, New York, NY 10018
Telephone: 917-339-2800