Limitations of our Liability
UNDER NO CIRCUMSTANCES WILL ANY TMARIE LINENS BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages of any kind that are directly or indirectly related to: (a) the Site (including the Content and the User Content); (b) your use of or inability to use the Site or the performance of the Site; (c) any action taken in connection with an investigation by TMarie Linens or law enforcement authorities regarding your access to or use of the Site; (d) any action taken in connection with copyright or other intellectual property owners or other rights owners; (e) any errors or omissions in the Site’s technical operation; or (f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction. The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if TMarie Linens Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure or destruction of the Site).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TMARIE LINENS’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TMARIE LINENS IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S).
15. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEB SITE, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY TMARIE LINENS OR A LICENSOR OF TMARIE LINENS
16. General Provisions
Updates to Terms. AS OUR SITE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SITE MAY BE MODIFIED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. You should frequently check these Terms for updates. You can reject any new, revised or Additional Terms by discontinuing use of the Site and related services.
Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with the laws of the Province of Ontario, without regard to its conflicts of law provisions.
Indemnity. You agree to defend, indemnify, and hold the TMarie Linens harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any TMarie Linens, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the Site and your activities in connection with the Site; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) TMarie Linens’ use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by TMarie Linens in the defense of any Claim and Losses. Notwithstanding the foregoing, TMarie Linens retain the exclusive right to settle, compromise and pay any and all Claims and Losses. TMarie Linens reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a TMarie Linens.
Operation of Site; Availability of Products and Services; International Issues. TMarie Linens controls and operates the Site from its Canada-based offices, and TMarie Linens makes no representation that the Site is appropriate or available for use outside the U.S. or Canada, as applicable. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available to be purchased only in Canada and may not be available worldwide. We reserve the right to limit the availability of the Site and/or the provision of any product, service or other feature described or available on the Site to any person, entity, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any product, service or other feature that we provide. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods purchased from the Site.
Severability; Interpretation. If any provision of these Terms, is for any reason deemed invalid, unlawful, void or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect). To the extent permitted by applicable law, you waive any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms, the word will be deemed to mean “including, without limitation,”.
Investigations; Cooperation with Law Enforcement; Termination; Survival. TMarie Linens reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms and any Additional Terms; (iii) investigate any information obtained by TMarie Linens in connection with reviewing law enforcement databases or complying with criminal laws; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; (v) prosecute violators of these Terms and any Additional Terms; and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Linens ‘n Things under these Terms or any Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from TMarie Linens, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to TMarie Linens in these Terms, as well as the indemnities, releases, disclaimers and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action and mandatory arbitration.
Assignment. TMarie Linens may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of TMarie Linens.
No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or TMarie Linens in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy; and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Patents. One or more patents may apply to this Site and/or certain activities provided via the Site, including Canada Patent 6,091,956.
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