THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
1.1 Account Creation.
In order to use certain features of the Services, you must create an account with SheerStyle ("SheerStyle Account") by providing us with the information requested on the registration form. You will also be prompted to provide additional optional information about yourself in order to customize your SheerStyle Account. You represent and warrant that: (a) all SheerStyle Account information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your SheerStyle Account at any time, for any reason, by emailing email@example.com. SheerStyle may suspend or terminate your SheerStyle Account in accordance with Section 8.
1.2 Account Responsibilities.
You are responsible for maintaining the confidentiality of your SheerStyle Account login information and are fully responsible for all activities that occur under your SheerStyle Account. You agree to immediately notify SheerStyle of any unauthorized use, or suspected unauthorized use of your SheerStyle Account or any other breach of security. SheerStyle cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Subject to the terms of this Agreement, SheerStyle grants you a non-transferable, non-exclusive, license to use the Services for your personal, noncommercial use.
2.2 Certain Restrictions.
We grant the rights granted to you in this Agreement with the understanding that you will not: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (b) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) access the Services in order to build a similar or competitive service; (d) alter, obfuscate or otherwise remove any copyright or other proprietary notices of any Services and (e) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit the Services, or any portion of the Services, in any form or by any means. Any future release, update, or other addition to functionality of the Services will also be deemed "Services" and subject to the terms of this Agreement.
SheerStyle reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that SheerStyle will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof, except and if otherwise expressly set forth in Section 8.
2.4 No Support or Maintenance.
You acknowledge and agree that SheerStyle will have no obligation to provide you with any support or maintenance in connection with the Services.
Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services are owned by SheerStyle or SheerStyle's licensors. The provision of the Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. SheerStyle and its suppliers reserve all rights not granted in this Agreement.
3. USER CONTENT
3.1 User Content.
"User Content" means any and all information and content that a user submits, posts or links on the Services. You are solely responsible for your User Content. Youassume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by SheerStyle. Because you alone are responsible for your User Content (and not SheerStyle), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy or applicable law. SheerStyle is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant, and you represent and warrant that you have the right to grant, to SheerStyle an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to allow others to do the same. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Acceptable Use Policy.
The following sets forth SheerStyle's "Acceptable Use Policy": (a) You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another's privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. (b) In addition, you agree not to use the Services to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data from the Services, including any information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; (vi) harass or interfere with another user's use and enjoyment of the Services; or (vi) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services (except that we grant the operators of public, general purpose internet search engines revocable permission to use spiders to copy materials from the Site (at all times, however, in compliance with our robots.txt file) for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. For the avoidance of doubt, general purpose internet search engines do not include search engines that specialize in the fashion or retail industries).
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your SheerStyle Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
If you provide SheerStyle any feedback or suggestions regarding the Services ("Feedback"), you hereby assign to SheerStyle all rights in the Feedback and agree that SheerStyle will have the right to use such Feedback and related information in any manner it deems appropriate. SheerStyle will treat any Feedback you provide to SheerStyle as non-confidential and non-proprietary. You agree that you will not submit to SheerStyle any information or ideas that you consider to be confidential or proprietary.
You agree to indemnify and hold SheerStyle (and its officers, employees, and agents) harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. SheerStyle reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of SheerStyle. SheerStyle will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5. THIRD PARTY SITES; OTHER USERS
5.1 Third Party Sites.
The Services might contain links to third party websites and services (collectively, "Third Party Sites"). Such Third Party Sites are not under the control of SheerStyle and SheerStyle is not responsible for any Third Party Sites. SheerStyle provides these Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable third party's terms and policies apply, including the third party's privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
5.2 Other Users.
Each user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other users are solely between you and such user. You agree that SheerStyle will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user, we are under no obligation to become involved. In the event that we become involved in any dispute, you agree to waive and release any claim against us as provided in Section 5.2.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other users. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
THE SERVICES ARE PROVIDED "AS-IS" AND "AS AVAILABLE" AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES (INCLUDING THE SITE AND THE MOBILE APP): (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. LIMITATION ON LIABILITY
IN NO EVENT WILL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES (INCLUDING THE SITE AND THE MOBILE APP), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES (INCLUDING THE SITE AND THE MOBILE APP) ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may (a) suspend your rights to use the Services (including your SheerStyle Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of this Agreement, your SheerStyle Account and right to access and use the Services will terminate immediately. You understand that any termination of your SheerStyle Account involves deletion of your User Content associated therewith from our live databases. SheerStyle will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your SheerStyle Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2.2-2.5, 3 -10.
9. COPYRIGHT POLICY
SheerStyle respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
your physical or electronic signature;
identification of the copyrighted work(s) that you claim to have been infringed;
identification of the material on our services that you claim is infringing and that you request us to remove;
sufficient information to permit us to locate such material;
your address, telephone number, and e-mail address;
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
Designated Copyright Agent: SheerStyle Copyright Agent
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective immediately following our posting of notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
10.2 Dispute Resolution.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the SheerStyle and our employees, agents, successors, or assigns, regarding or relating to these the Services or this Agreement, will exclusively be settled through binding and confidential arbitration.
(b) Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA") or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA's or JAMS's rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator will honor claims of privilege and privacy recognized at law; (6) the arbitrator's award will be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys' fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees' and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in Kings County, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Kings County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Kings County, New York for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in the paragraph 12.2(b) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 12.2(b) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Kings County, New York.
(g) Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination will not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and will not be effective as to any claim of which you provided the SheerStyle with written notice prior to the date of termination.
(h) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it's Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
10.3 Choice Of Law.
Any and all controversies, disputes, demands, counts, claims, or causes of action between you and the SheerStyle and our employees, agents, successors, or assigns, regarding or relating to these the Services or this Agreement, will exclusively be governed by the internal laws of the State of New York, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision will be governed by the Federal Arbitration Act.
10.4 Electronic Communications.
The communications between you and SheerStyle use electronic means, whether you use the Service or send SheerStyle e-mails, or whether SheerStyle posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SheerStyle in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SheerStyle provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
10.5 Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to SheerStyle is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without SheerStyle's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees.
10.6 Copyright/Trademark Information.
Copyright © 2014, SheerStyle, Inc. All rights reserved. "SheerStyle" and are registered trademarks or trademarks of SheerStyle. All other trademarks, logos and service marks ("Marks") displayed on the Services, including other company and product names, may be trademarks of the respective companies with which they are associated. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
10.7 Contact Information:
LAST REVISED ON: January 6, 2016