1. INTRODUCTION
1.1 Please read these terms of use (“Terms of Use”) carefully before using this website (“Site"). Accessing, viewing or using the content, material, products, or services available on or through Site indicates that you accept and agree to comply with the Terms of Use, as well as Our Privacy and Cookie Notice and any other additional terms governing the content, material, products, or services available on or through Site, including the Warranty. If that is not the case, do not use the Site. You further certify that you are 18 years of age or older and that you have all the necessary rights, power and authority to enter into these Terms of Use and perform the obligations set forth herein.
1.2 The Site is operated by and the Terms of Use were issued by OMEGA – Division of The Swatch Group (U.S.) Inc. (“Omega”, “We", “Us”, “Our”), an affiliate of The Swatch Group Ltd. (“The Swatch Group”).
1.3 Omega may at any time revise these Terms of Use. Your continued use of the Site following the changes to these Terms will be considered your consent to those changes. You are bound by any such revision and should therefore periodically visit this page to review the then current terms to which you are bound.
2. PURPOSE AND CONTENT OF THE WEBSITE
2.1 All information and materials on the Site are presented solely for the purpose of providing general information on and promoting Our products and services. Such information and materials do not constitute offers for Our products and / or services or official retailers or other third parties, nor do they constitute advice or other instructions on the use of Our products and / or services.
2.2 In order to access certain products, content, services or benefits on the Site, you may be asked to register and create an account. As part of the registration process, you may be asked to click to agree to these Terms of Use, and may then be asked to select or submit a user name and password. You are fully responsible for your account, including use of the account by any third party, and maintaining the confidentiality of your password. You may also be required to provide Us with certain information about yourself including some types of personally identifiable information, including your phone number, address, email address, gender, and age. Any personal information that you provide to Us via the Site is subject to our Privacy and Cookie Notice.
2.3 The Site may contain information on our worldwide products and services, not all of which are available at every location. A reference to any product or service does not imply that that product or service is or will be available at your location.
2.4 We have made every effort to display as accurately as possible the colors of our products that appear on this Site. However, since the actual colors you see depend upon your computer and monitor, we cannot generate that the display of any color will be completely accurate.
2.5 We, from time to time, may run promotions or other special offers. These may include a free item added to your shopping basket upon check-out and sent to you together with your purchased item(s). Should you choose to withdraw your purchase in accordance with Our Return Policy, we will accept such withdrawal only if you also return the free item that corresponds with your purchase. Such promotions or other special offers may be offered at Our sole discretion as to time, duration, choice of item and all related decisions.
3. PURCHASES
3.1 Some products or services made available through the Site may be available for purchase. By purchasing products or services made available through the Site, you represent that you have reached the age of majority (which in most jurisdictions is 18 years old) and have the legal capacity to enter into a contract and that you agree to these Terms of Use and any additional terms presented to you at the time of purchase. If you are under the age of majority or cannot lawfully enter into a contract, you must have your parent or guardian review these Terms of Use and the Privacy and Cookie Notice, and register or place an order on your behalf.
3.2 We use a third party payment processor to process credit card transactions made through the Site. If you purchase products or services from Us or make any payments via the Site with your credit card, the credit card information that you submit will be protected by encryption, such as with the Secure Socket Layer (“SSL”) protocol. Encryption decreases the likelihood that your credit card information will be stolen or intercepted during transmission. Transactions with such third party processor are governed by that party’s separate terms of use. We will inform you which payment processor is used when processing your payments.
3.3 You are responsible for paying any governmental taxes imposed in connection with use of the Site or the purchase or any products or services made available through the Site, including sales, use, and excise taxes (excluding only taxes on Our net income). To the extent that We are obligated to collect such taxes, the applicable tax will be added to your billing account.
3.4 You may withdraw the purchase, return the purchased items and claim refund in accordance with Our Return Policy.
3.5 All prices displayed on the Site are quoted in the currency noted on the Site. We may restrict delivery to addresses in certain jurisdictions. We will add shipping and handling fees and applicable sales/use tax in accordance with Our then existing policies. We reserve the right without prior notice to discontinue or change specifications and prices on products and services offered on its Site without incurring any obligation to you. Products displayed on this Site are available while supplies last. Descriptions of, or references to, products or services on this Site do not imply endorsement of that product or service, or constitute a warranty, by Omega. For warranty information please see Our Warranty. The receipt by you of an order confirmation does not constitute Our acceptance of an order. Prior to Our acceptance of an order, verification of information may be required. We reserve the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from Us. We reserve the right to limit the order quantity on any item and to refuse service to any customer without prior notification. In the event that a product or service is listed at an incorrect price, We shall have the right to refuse or cancel orders placed for the product listed at the incorrect price, regardless of whether the order has been confirmed and your account charged. If your account has already been charged for the purchase and your order is canceled, We shall promptly issue a credit to your account in the amount of the incorrect price, or provide you with a refund at your election. The risk of loss and title for all products purchased by you and shipped by Us pass to you upon Our delivery to the carrier for shipment. The risk of loss and title for all products purchased by you and shipped directly by one of Our vendors pass from such vendor to you upon such vendor's delivery to the carrier for shipment.
3.6 Occasionally we will offer special promotions to our customers. This can include a gift with purchase, free shipping or other promotional activity associated with a product purchase. These offers may be for a limited time only and may be online only. These offers may include exclusions on specific products.
4. USER CONTENT
4.1 Please be aware that whenever you post information to the Site (e.g. a forum or guestbook) that information may be accessible for other users. You should therefore choose carefully the information you post and that you provide to other users.
4.2 Omega does not claim any ownership rights in the text, files, images, photos, video, sounds, feedback, works of authorship or any other materials that you may post (“User Content”) on the Site. After posting your User Content, you continue to retain all ownership rights in it, and you continue to have the right to use it in any way you choose. By posting your User Content on or through the Site, you hereby grant Us a non-exclusive, sublicensable, transferable, fully paid-up, royalty-free and worldwide license to use, modify, publicly perform, publicly display, reproduce, create derivative works and distribute your User Content, all without any compensation to you whatsoever, including in product designs, on and through the Site or in the Omega section of a third-party platform (Facebook, Twitter, etc.).
4.3 By posting User Content to the Site or otherwise submitting User Content to Us, you represent and warrant that: (i) you own the User Content posted by you on the Site or otherwise have the right to grant the license set forth above, and (ii) the posting of your User Content on the Site does not violate the privacy rights, publicity rights, copyrights, trademarks, contract rights or any other rights of any person or company, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person.
4.4 You are solely responsible for the User Content that you post on the Site. You may not post, transmit, or share User Content on the Site that you did not create or that you do not have permission to post. User Content is not necessarily reviewed by Omega prior to posting and does not necessarily reflect the opinions or policies of Omega. Omega makes no warranties, express or implied, as to User Content or the accuracy and reliability thereof or any material or information that you transmit to other users. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability or otherwise violate any law.
4.5 Omega expressly reserves the right to remove any information or materials posted or transmitted for any reason or for no reason, including any offers for watches. Omega will fully cooperate with any law enforcement authorities or court order requesting or directing Omega to disclose the identity of anyone posting any such information or materials.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 The Site together with any information, text, images, photographs, audio and video clips, designs, graphics, logos, symbols, names, product and corporate designations, as well as all software contained in the Site and all other files, and their selection and arrangement (the “Site Content"), are subject to legal protection, in particular copyright, trademarks and design rights held by Omega, The Swatch Group, its affiliates, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted or sold in any form or by any means, in whole or in part, without Our prior written permission, except that the foregoing does not apply to your own User Content that you legally post on the Site. In addition, no digital content whatsoever may be copied into other programs without the prior written approval of Omega.
5.2 Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content. The license is subject to these Terms of Use and does not include use of any data mining, robots or similar data gathering or extraction methods. Except for your own User Content, you may not upload or republish the Site Content on any Internet, intranet or extranet site or incorporate it in any other database or compilation, and any other use of the Site Content is strictly prohibited. You may only use the Site for your non-commercial, non-exclusive, non-assignable, non-transferable and limited personal use, and for no other purposes. You may not resell any item purchased from this Site. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Omega, is strictly prohibited and will terminate the license granted herein. Any unauthorized use may also violate applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in the Terms of Use will be construed as conferring any license to any intellectual property rights.
5.3 "Omega" and other trademarks, logos, characters, page headers, button icons, scripts, service names and other marks (collectively “Trademarks”) displayed on the Site are subject to the trademark and other rights of Omega, the Swatch Group or their affiliates. Our Trademarks 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 and may not be copied, imitated or used, in whole or in part, without the prior written permission of Omega. Your use / misuse of Trademarks displayed on the Site, or of any other Site Content, except as provided for in these Terms of Use, is strictly prohibited.
6. DISCLAIMER
6.1 EXCEPT AS EXPRESSLY PROVIDED IN THE [WARRANTY], THE SITE, THE SITE MATERIALS AND USER CONTENT AND MATERIALS ON, IN, AND MADE AVAILABLE THROUGH THE SITE, AND THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITE ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.” USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE, THE USER CONTENT, THE SITE MATERIALS, THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITE, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT.
6.2 Omega assumes no responsibility, and shall not be liable for, any damage to, or viruses that may infect, your computer equipment or other property on account of your access to, use of or browsing of the Site or your downloading of any materials, data, text, images, video or audio from the Site.
6.3 Omega reserves the right to interrupt or discontinue any or all of the functionalities of the Site. Omega accepts no responsibility or liability whatsoever for any interruption or discontinuance of any or all functionalities of the Site, irrespective of whether this is the result of actions or omissions of Omega, The Swatch Group or any of their affiliates or any third party.
6.4 While Omega uses reasonable efforts to include accurate and up-to-date information on the Site, it makes no warranties or representations with respect to the Site. The Site Content may contain technical inaccuracies or typographical errors. Omega reserves the right to make changes, corrections and/or improvements to the Site Content at any time without notice.
7. LINKS TO AND FROM OTHER WEBSITES
7.1 Because Omega has no control over and does not endorse any of the sites to which the Site is linked and because Omega has not reviewed any or all of the sites to which the Site is linked, you acknowledge that Omega is not responsible for the content of any off-site pages or any other sites linked to the Site. Responsibility for access to off-site pages and linked third-party sites rests solely with you.
7.2 Your linking to the Site, off-site pages or other sites is at your own risk. By making use of any such links, you understand that the legal statement and Privacy and Cookie Notice of any linked site will apply, which may be different from those of Omega.
7.3 Framing of the Site by sites or site elements is not permitted. In-line linking or any other manner of incorporating parts of the Site on other sites is equally prohibited.
8. SERVICE ACCESS
8.1 While Omega endeavors to ensure that the Site is normally available 24 hours a day, it will not be liable if for any reason it is unavailable at any time or for any period.
8.2 Access to the Site may be suspended temporarily and without notice in case of a system failure, maintenance or repair or for reasons beyond Our control.
9. LIMITATION OF LIABILITY
9.1 IN AS MUCH AS PERMITTED BY LAW, AND EXCEPT FOR DAMAGE CAUSED BY WILLFUL INTENT OR GROSS NEGLIGENCE, OMEGA, AND ANY OTHER COMPANY OF THE SWATCH GROUP, AND THEIR AFFILIATES, SUBSIDIARIES AND LICENSORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS OR AGENTS OF ANY OF THEM, EXCLUDE ALL LIABILITY AND RESPONSIBILITY FOR ANY AMOUNT OR KIND OF LOSS OR DAMAGE THAT MAY RESULT TO YOU OR A THIRD PARTY (INCLUDING ANY INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, OR ANY LOSS OF INCOME, PROFITS, GOODWILL OR DATA) IN CONNECTION WITH THE SITE IN ANY WAY OR IN CONNECTION WITH THE USE, INABILITY TO USE OR THE RESULTS OF USE OF THE SITE, ANY WEBSITES LINKED TO THE SITE OR THE MATERIAL ON SUCH WEBSITES, INCLUDING LOSS OR DAMAGE DUE TO VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT, SOFTWARE, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF OR BROWSING OF THE SITE OR YOUR USE OF ANY SITE CONTENT OR ANY WEBSITES LINKED TO THE SITE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR WE HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF WE AND OUR AFFILIATES, SUBSIDIARIES AND LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITE, USER CONTENT, THE SITE MATERIALS ON, IN, AND MADE AVAILABLE THROUGH THE SITE, OR THE SERVICES, INFORMATION, OR PRODUCTS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF US AND OUR AFFILIATES, SUBSIDIARIES AND LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10). IF YOU ARE DISSATISFIED WITH THE SITE, OR WITH ANY OF THESE TERMS, OR FEEL WE HAVE BREACHED THESE TERMS, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.
10. PRIVACY
We care about your privacy and the protection of your personal data. Read our privacy policy.
11. INDEMNIFICATION
11.1 You will indemnify Omega, The Swatch Group and their affiliates, subsidiaries and licensors and their respective officers, directors, employees, shareholders or agents (“Indemnitees”) against all claims, actions, suits, and other proceedings (“Claims”) arising out of or incurred in connection with the Site and your use of the Site or services obtained through the Site, your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, the User Content, the Site Content, the services, products, information and other materials on, in and made available through the Site, (except to the extent attributable to us), or any breach by you of these Terms of Use, and you will indemnify and hold the Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims.
12. COMPLAINT PROCEDURES
If you believe that any content or postings on this Site violates your intellectual property or other rights, please send to us at omegaonlinestore@swatchgroup.com a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”
13. DISPUTE RESOLUTION
Any dispute arising out of these Terms of Use shall be resolved exclusively through final and binding arbitration conducted by the American Arbitration Association (the “AAA”). Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow the terms of these Terms, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate shall be for a court of competent jurisdiction to decide. Arbitration shall take place in New York City, New York, unless We elect otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, without regard to any conflict-of-law rules or the United Nations Convention on Contracts for the International Sale of Goods. The arbitrator shall not be bound by rulings in prior arbitrations involving different Site users, but is bound by rulings in prior arbitrations involving the same Site user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, We will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Us should be submitted by mail to the AAA along with your demand for arbitration and We will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, We will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the costs of accessing arbitration from being prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Us for all fees associated with the arbitration paid by Us on your behalf that you otherwise would be obligated to pay under the AAA’s rules. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall still apply. You can choose to reject this agreement to arbitrate by mailing Us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty days after the date you accept these Terms of Use for the first time. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street number and address, city, state, and zip code), phone number, and the email address used to log in to the Omega account to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms of Use will continue to apply. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with Us.
14. MISCELLANEOUS
14.1 The Site is controlled by Omega Ltd., Rue Jakob Stämpfli 96, 2502 Biel-Bienne, Switzerland, and operated from within the United States by Omega. Without limiting anything else, We make no representation that the Site, Site Content, User Content, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited.
14.2 The failure of Omega to exercise or enforce any right or provision of the Terms of Use will not operate as a waiver of any such right or provision. The section titles in the Terms of Use are for convenience only and have no legal or contractual effect. The invalidity or unenforceability of any provision of the Terms of Use does not affect or impair in any way the validity, legality and enforceability of the remaining provisions contained herein. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”
14.3 If you have any questions about the Terms of Use, write to
Omega Ltd.
OMEGA – Division of The Swatch Group (U.S.) Inc.
703 Waterford Way, Suite 920
Miami, FL 33126
United States
or via omegaonlinestore@swatchgroup.com
Dated: 1st November 2017
Copyright © 2017 Omega Ltd. All rights reserved.
