Getwear Terms of Service
Last Updated Date: Aug 22, 2013
Key Content-related Terms
“Content” means text, graphics, images, software, audio, video, information or other materials.
“Getwear Content” means Content that Getwear makes available through the Site or Services, including, but not limited to any Content licensed from a third party but excludes Member Content.
“Member” means a person that completes Getwear’s account registration process, as described under the “Account Registration” section below.
“Member Content” means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site or Services.
“Collective Content” means, collectively, Getwear Content and Member Content.
Certain areas of the Site (and your access to or use of certain Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services or Collective Content, as applicable.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Getwear reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
The Site and Services are intended solely for persons who are 13 or older. Any access to or use of the Site or Services by anyone under 13 is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are 13 or older. If you are under 18, but over 13, you may use the Site and Services only with involvement of a parent or guardian.
The Site and Services can be used to (i) design, personalize and purchase jeans according to your preferences and measurements based on the fabrics, styles, and other design elements we make available via the Site and Services; (ii) share designs you create with other users of the Site and Services, so that they can personalize or purchase the same or similar jeans; (iii) browse, view and purchase jeans designed by other users of the Site and Services; (iv) earn Credits (defined below) and, in some instances, cash, if another user purchases jeans you designed via the Site and Services; and (v) upload your own Member Content, including, but not limited to, photos of you wearing jeans you designed, a personal photo and biography to share with other users of the Site and Services.
Please note that Getwear makes reasonable efforts to accurately display the designs and colors of the jeans that appear on the Site and Services. The designs of the jeans that appear on the Site and Services are digital images, so you understand and agree that the actual jeans you order may have immaterial discrepancies from the images that appear on the Site and Services. Additionally, the actual colors that you see when you view the Site will depend on your monitor, and as a result, Getwear cannot guarantee that your monitor’s display of any color will be accurate.
In order to access certain features of the Site and Services, you must create an account (“Account”) and become a Member. You may do so directly via the Site or by logging into your account with certain third party social media or social networking sites (“SNS”) (including, but not limited to, Facebook) via the Site, as described herein. If you decide create an Account through an SNS, we will extract the personal information you have provided to the SNS (such as your SNS name and other information you make publicly available via the SNS) depending on the permissions you choose via the account you have with the applicable SNS, and use that information to create your Account. The specific information that we extract may depend on the privacy settings you have with the SNS. You hereby consent to our access to and collection of such personal information about you. During your use of the Site and Services, you will be required to provide certain information and you will establish a password.
You agree to provide accurate, current and complete information during your use of the Site and Services and to update such information to keep it accurate, current and complete. Getwear reserves the right to suspend or terminate your Account if any information provided to Getwear proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Getwear of any unauthorized use of your Account.
Orders and Payment Terms
The prices displayed on the Site are quoted in U.S. Dollars (USD) and are subject to change without notice. The Site may display prices of products in other currencies, but you understand and agree that these non-USD prices are for reference only and all payments will be processed by Getwear in USD.
If you choose to make any purchases via the Site, we will collect billing and shipping information from you, including, but not limited to, your credit card information, billing address and shipping address. We may also collect your email address for the purpose of contacting you with questions related to your order. You agree to pay the applicable fees and any taxes and other fees that may accrue in relation to purchases you make via the Site. You authorize Getwear or our third party payment processers to charge your method of payment for any purchases you make via the Site and Services. For information on shipping rates and delivery estimates, please see http://getwear.com/shipping/. All delivery estimates are provided as a courtesy only, and are not guaranteed.
Please note that we may, at our own discretion, limit or cancel quantities purchased per person, per household or per order. We also reserve the right to refuse any order you place with us. In a few instances, certain body proportions may result in a pattern that falls outside of our manufacturing capabilities. In the unlikely event we cannot accommodate your request, we will attempt to contact you by phone or email.
Returns and Exchanges
Because items purchased on the Site are custom-made, Getwear does not offer refunds or exchanges, except if Getwear determines, in Getwear’s sole discretion, that the item you received differs materially from the item you ordered. If any item you purchase via the Site does not fit properly, we may, in our sole discretion, offer to exchange your item for the same design in the appropriate size. In order to request a refund or exchange, please contact us at firstname.lastname@example.org within ten (10) days of your receipt of the applicable item. If we determine that you may be eligible for a refund or product exchange, you must return the item in question in unworn, unwashed and new condition, with tags attached, within fifteen (15) business days of your receipt of applicable item, via United States Postal Service economy shipping or other similar carrier and class if you are located outside of the United States.
Sales of Jeans You Design and Getwear Credits
As stated above, the Site and Services can be used to design, personalize and purchase jeans according to your preferences and measurements based on the fabrics, styles, and other design elements available via the Site and Services. If you choose to design a pair of jeans via the Site and Services, such design will be referred to in this Section as “Your Design”. If you choose to share Your Design with other users of the Site and Services, by selecting the “Sell” button after you complete Your Design, we will make Your Design publicly viewable via the Site and allow other users to purchase jeans made to Your Design or allow other users to further customize and purchase jeans based on Your Design. We reserve the right not to display or offer Your Design to others if we determine, in our sole discretion, that Your Design is inappropriate for the Site and Services.
If you share Your Design as described above, each time another user of the Site selects the link to Your Design, and purchases jeans from Your Design via the Site and Services, you may be entitled to a credit in the amount of $10.00 USD (a “Getwear Credit”). If a user of the Site selects the link to Your Design, edits Your Design and then purchases the jeans based upon Your Design, you may also be entitled to a Getwear Credit. Additionally, if another user of the Site uses Your Design as a base, modifies Your Design and chooses to share such design with other users of the Site and Services, and such design is purchased by a third party via the Site and Services, you may be entitled to a credit in the amount of $5.00 USD (a “Partial Getwear Credit”). Getwear Credits and Partial Getwear Credits are collectively referred to herein as “Credits”.
If Getwear determines, in its sole discretion, that you are entitled to receive a Credit, such Credit will be reflected in your Account in a commercially reasonable amount of time (typically, 30 to 60 days) after the qualifying purchase has been completed, subject to the terms and conditions of these Terms. The Credits you accrue will be displayed in your Account. Please note that Getwear reserves the right, in its sole discretion, to remove any Credits from your Account if the order for which you received such Credits is subject to a return, refund or cancellation.
You may not earn Credits by permitting another individual to use your Account. Credits accrued in multiple Accounts may not be combined into one Account. You may not earn Credits by creating multiple Accounts. If for some reason there is a discrepancy concerning your balance of Credits, please contact us at email@example.com. Getwear may require you to submit additional information in order to make a determination regarding your balance. All decisions regarding your balance will be final and at Getwear’s sole discretion. Getwear is not responsible if your Account or your Credits are used without your permission.
Please note that other users of the Site and Services may create designs that are similar or identical to Your Design, and may use Your Designs as the basis for their own designs. Subject to the terms and conditions of this Section, you understand and agree that you may not in some cases be eligible to earn Credits for purchases made through links associated with other Members’ Accounts.
If you choose to use your Credits to purchase items via the Site and Services, but don’t have enough Credits to cover the full amount due, you will be responsible for paying the difference.
The Site, Services and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of Getwear and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Collective Content.
Licenses Granted by Getwear to Getwear Content and Member Content
Subject to your compliance with the terms and conditions of these Terms, Getwear grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Getwear Content solely for your personal and non-commercial purposes; and (ii) a to view any Member Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Getwear or its licensors, except for the licenses and rights expressly granted in these Terms.
License granted by Member
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site or Services, you hereby grant to Getwear a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Member Content only on, through or by means of the Site or Services. Without limiting the foregoing, to the extent you have any copyright or other interest in Your Design(s), you acknowledge and agree that we will be free to offer and sell jeans based upon Your Design to via the Site and Services and through other channels, including, but not limited to, retail stores, on an irrevocable and perpetual basis. Getwear does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to Getwear and to the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Getwear’s use of the Member Content (or any portion thereof) on, through or by means of the Site or Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site or Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Site, or any individual element within the Site or Services, Getwear’s name, any Getwear trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Getwear’s express written consent;
- Access, tamper with, or use non-public areas of the Site, Getwear’s computer systems, or the technical delivery systems of Getwear’s providers;
- Attempt to probe, scan, or test the vulnerability of any Getwear system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Getwear or any of Getwear’s providers or any other third party (including another user) to protect the Site, Services or Collective Content;
- Attempt to access or search the Site, Services or Collective Content or download Collective Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Getwear or other generally available third party web browsers;
- Use any meta tags or other hidden text or metadata utilizing a Getwear trademark, logo URL or product name without Getwear’s express written consent;
- Use the Site, Services or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Collective Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Collective Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Services;
- Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Getwear will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Getwear may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Getwear has no obligation to monitor your access to or use of the Site, Services or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Getwear reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Getwear, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Services.
Getwear respects copyright law and expects its users to do the same. It is Getwear’s policy to terminate in appropriate circumstances Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Getwear’s Copyright Policy at http://getwear.com/copyright/, for further information.
Getwear may operate contests and other promotions (collectively, “Promotions”) via the Site and Services. You should carefully review the rules (e.g. the “Official Rules”) of each Promotion in which you participate via the Site and Services, as they may contain additional important information about our rights to and ownership of any submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of such Official Rules conflict with these Terms, the terms and conditions of such Official Rules will control.
The Site or Services may contain links to third-party websites or resources. You acknowledge and agree that Getwear is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Getwear of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Getwear will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Getwear reserves the right to revoke your access to and use of the Site, Services and Collective Content at any time, with or without cause. In the event Getwear terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to email@example.com".
If you or we cancel your Account, we will provide you with a payment in the amount of your Credits; provided, however, that if we are cancelling your Account because of your breach of these Terms, we may set off any liability you may have to us, in our reasonable determination, and reduce the amount remitted to you accordingly. In any event, if the amount being cashed out is less than the $100 threshold stated in these Terms, we may deduct up to $10 from the cash out payment to cover our processing costs.
If we are unable to remit any cash out payment to you because your Account information or tax information (if applicable) is inaccurate, incomplete, out of date: (i) we will notify you of the problem; and (ii) if you do not correct it and notify us of the correction such that the payment can be made within twelve (12) months, you authorize us to remit the payment amount as a contribution in your name to a 501(c)(3) charitable nonprofit organization of our choice. If required by law, however, we will instead escheat (send) the payment amount to your state of residency (based on the most recent address we have on file for you) or the State of California (if your address is unknown or outside the U.S.). To claim any escheated funds, you must contact the state’s unclaimed property administrator.
THE SITE, SERVICES AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, GETWEAR EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. GETWEAR MAKES NO WARRANTY THAT THE SITE, SERVICES OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. GETWEAR MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GETWEAR OR THROUGH THE SITE, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT GETWEAR DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE OR SERVICES, NOR DOES GETWEAR MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES. GETWEAR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold Getwear, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services or Collective Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER GETWEAR NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GETWEAR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL GETWEAR’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT EXCEED THE GREATER OF THE AMOUNTS YOU HAVE PAID TO GETWEAR IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM GIVING RISE TO LIABILITY OR ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GETWEAR AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Getwear used herein are trademarks or registered trademarks of Getwear. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between Getwear and you regarding the Site, Services and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Getwear and you regarding the Site, Services and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Getwear’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Getwear may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Getwear: (i) via email (in each case to the address that you provide); or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You and Getwear agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Getwear are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Getwear otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Getwear otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Getwear submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Getwear will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Getwear will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification” section above, if Getwear changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Getwear’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Getwear in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Getwear to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Getwear. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Getwear at:
2200 Clarendon Blvd. Suite 1400A, Arlington, VA 22201