SECTION 12 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using www.thingsincommon.com or any other website with an authorized link to this Agreement (“Website”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.
Subject to Section 12.9 of this Agreement, Simplewear reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1) REGISTRATION. When registering an account for the Services on Shopify (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Simplewear immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same Simplewear service at any given time. Simplewear reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Simplewear.
2) ORDER PROCESS.
2.1) Order Acceptance. Each part of any order that you submit to Simplewear constitutes an offer to purchase. If you do not receive a message from Simplewear confirming receipt of your order, please contact our Customer Service department at firstname.lastname@example.org before re-entering your order. Simplewear’s confirmation of receipt of your order does not constitute Simplewear's acceptance of your order. Simplewear is only deemed to have accepted your order once the product(s) you ordered have been shipped (the “Product”).
2.2) Order Issues. Although we strive to accept all valid orders, Simplewear reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.
2.3) Returns. We want you to be happy with the Product that you purchase from us. If you are not completely happy with the Product, please feel free to contact us at email@example.com with any questions or concerns, and/or refer to our return policy available at www.thingsincommon.com if you would like to return any Product you purchased through the Services.
2.4) Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, Simplewear reserves the right to cancel your order and provide you a refund for the amount paid for the Product.
2.5) Restrictions on Resale. To protect the intellectual property rights of Simplewear and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. Simplewear reserves the right to decline any order that we deem to possess characteristics of reselling.
2.6) Third-Party Provider. Simplewear uses a third-party service provider for fulfilling orders. By ordering any Product through the Services, you acknowledge that Simplewear has no responsibility or liability for any delays that may result from orders handled by such third-party service provider.
3) FEES AND PURCHASE TERMS.
3.1) Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide a valid credit card (Visa, MasterCard, or any other issuer accepted by us) to Shopify, our third party payment provider (“Payment Provider”) in order to purchase products and to use certain Services. Your credit card provider agreement governs your use of the designated credit card, and the terms and conditions on the website of the Payment Provider governs your use of its website, and you must refer to the respective agreement or terms and conditions, and not the Terms, to determine your rights and liabilities. By providing to Shopify, on behalf of Simplewear, with your credit card number and associated payment information, you agree that Simplewear is authorized to immediately invoice your Account for all fees and charges due and payable to Simplewear hereunder and that no additional notice or consent is required. You agree to immediately notify Simplewear of any change in your billing address or the credit card used for payment hereunder. Simplewear reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
3.2) Refunds. Except as set forth in any separate refund policy posted on the Services, all fees are non-refundable.
3.3) Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Simplewear communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
4) OWNERSHIP OF AND LICENSE TO USE SERVICES.
4.1) Use of the Services. Except with respect to User Content, Simplewear and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Simplewear grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Simplewear, its suppliers and service providers reserve all rights not granted in this Agreement.
4.2) Trademarks. Simplewear’s stylized name and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of Simplewear and may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
4.3) Other Content. Except with respect to any content that you may post, you agree that you have no right or title in or to any Content that appears on or in the Services.
4.4) License to Your Content. Subject to any applicable account settings that you select, you grant Simplewear a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, any content you may post (in whole or in part) for the purposes of operating and providing the Services to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of the content you may post that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in any content you may post, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Simplewear, are responsible for all of the content you may post on or in the Services.
4.5) Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Simplewear (“Feedback”) is at your own risk and that Simplewear has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Simplewear the right to use any Feedback in any way at any time without any additional approval or compensation.
5) RESTRICTIONS ON USE OF SERVICES. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, logo or Services (including images, text, page layout or form) of Simplewear; (c) you shall not use any metatags or other “hidden text” using Simplewear's name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by Simplewear pursuant to this Agreement.
6) THIRD-PARTY SERVICES. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Simplewear does not control and is not responsible for Third-Party Links. Simplewear provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk. When you leave the Services, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Links, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7) INDEMNIFICATION. You agree to indemnify and hold Simplewear, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Simplewear Indemnitees”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Simplewear reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Simplewear in asserting any available defenses. This provision does not require you to indemnify any of the Simplewear Indemnitees for any unconscionable commercial practice by such party or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
8) DISCLAIMER OF WARRANTIES AND CONDITIONS.
8.1) AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SIMPLEWEAR INDEMNITEES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM THE PRODUCTS AND SERVICES. THIS SECTION 8 DOES NOT AFFECT IN ANY WAY OUR RETURN POLICY FOR THE PRODUCTS.
8.2) PRODUCTS. DESCRIPTIONS, IMAGES, REFERENCES, FEATURES, CONTENT, SPECIFICATIONS, PRODUCTS, PRICES, AND AVAILABILITY OF ANY PRODUCTS ARE SUBJECT TO CHANGE WITHOUT NOTICE. OUR CURRENT PRICES CAN BE FOUND ON THE SERVICES. WE MAKE REASONABLE EFFORTS TO ACCURATELY DISPLAY THE ATTRIBUTES OF OUR PRODUCTS, INCLUDING THE APPLICABLE COLORS; HOWEVER, THE ACTUAL COLOR YOU SEE WILL DEPEND ON YOUR COMPUTER SYSTEM, AND WE CANNOT GUARANTEE THAT YOUR COMPUTER WILL ACCURATELY DISPLAY SUCH COLORS. THE INCLUSION OF ANY PRODUCTS ON THE SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THESE PRODUCTS WILL BE AVAILABLE AT ANY TIME.
8.3) NO LIABILITY FOR CONDUCT OF THIRD PARTIES OR PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT THE SIMPLEWEAR INDEMNITEES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SIMPLEWEAR INDEMNITEES LIABLE, FOR THE CONDUCT OF THIRD-PARTIES OR ANY PRODUCTS THAT THEY MAY PROVIDE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTIES AND/OR PRODUCTS RESTS ENTIRELY WITH YOU.
8.4) No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT SIMPLEWEAR DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES.
9) LIMITATION OF LIABILITY.
9.1) Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SIMPLEWEAR INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT SIMPLEWEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2) Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE SIMPLEWEAR INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO SIMPLEWEAR BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).
9.3) Your Content. THE SIMPLEWEAR INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
9.4) Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIMPLEWEAR AND YOU.
10) TERMINATION. At its sole discretion, Simplewear may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Simplewear reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Simplewear for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16.
11) INTERNATIONAL USERS. The Services are controlled and offered by Simplewear from its facilities in the United States of America. Simplewear makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
12) DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Simplewear, its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “Simplewear Parties”) and limits the manner in which you can seek relief from the Simplewear Parties.
12.1) Applicability of Arbitration Agreement. You agree that any dispute between you and us (or other Simplewear Parties) relating in any way to the Services or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and the Simplewear Parties may assert claims in small claims court if the claims qualify; and (2) you or the Simplewear Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
12.2) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.comor by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Simplewear will pay them for you.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the U.S. county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3) Authority of Arbitrator. Without limiting the scope of Section 17.1, the arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the Simplewear Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4) Waiver of Jury Trial. YOU AND THE SIMPLEWEAR PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Simplewear Parties are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5) Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS BY OR AGAINST ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF OR AGAINST ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 12.5’s limitations as to a given claim for relief, then the applicable claim, and only that applicable claim, must be severed from the arbitration and brought into the state or federal courts located in the State of New York in accordance with Section 13.4. All other claims shall be arbitrated.
12.6) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Simplewear, Inc., 48 West 38th Street, Attn: Support or email to firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us or other Simplewear Parties.
12.7) Severability. Except as provided in Section 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.8) Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Simplewear.
12.9) Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Simplewear makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Simplewear at the following address: Simplewear, Inc., 48 West 38th street.
13) GENERAL PROVISIONS.
13.1) Electronic Communications. The communications between you and Simplewear use electronic means, whether you visit the Services or send Simplewear e-mails, or whether Simplewear posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Simplewear in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Simplewear provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
13.2) Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Simplewear’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.3) Force Majeure. Simplewear shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.4) Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact our customer service department using the contact information available on the Services. We will do our best to address your concerns.
13.5) Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Simplewear agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 15.1 will be litigated exclusively in the state courts in New York, New York or federal courts located in the Eastern District of New York.
13.6) Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
13.7) Notice. Where Simplewear requires that you provide an e-mail address, you are responsible for providing Simplewear with your most current e-mail address. In the event that the last e-mail address you provided to Simplewear is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Simplewear’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Simplewear at the following address: Simplewear Inc., 48 West 38th Street. Such notice shall be deemed given when received by Simplewear by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.8) Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.9) Severability. Subject to Section 12.5, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.10) Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.
13.11) Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
13.12) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.