Terms of Service
Please read this Terms of Service fully and carefully before using www.nexwear.com, our mobile website, our iPhone app, our Android app and all related mobile platforms and online applications (collectively, the “Site”) and the services, features, content or applications we offer (collectively with the Site, the “Services”). These Terms of Service set forth the legally binding terms and conditions for your use of the Site and the Services.
- ACCEPTANCE OF TERMS OF SERVICE.
- By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, or clicking on a button or taking similar action to signify your affirmative acceptance of these Terms of Service, you agree to be bound by these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
- Certain Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SITE.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE SECTION 13 (ARBITRATION AGREEMENT) BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- HEALTH CARE DISCLAIMER.
ALL ASPECTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION ALL CONTENT (AS DEFINED BELOW), ARE FOR INFORMATIONAL PURPOSES ONLY. NO INFORMATION PROVIDED THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT TAKEN TO BE, FACTUAL OR ACCURATE KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. NO ASPECT OF THE SERVICES SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, PROFESSIONAL MEDICAL KNOWLEDGE, ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICES DO NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH PROVIDER, KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. YOU CANNOT USE THE SERVICES AS A DIAGNOSIS, TREATMENT OR PRESCRIPTION. RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. NO PATIENT/DOCTOR RELATIONSHIP OF ANY KIND IS ESTABLISHED THROUGH USE OF THE SERVICES. THE SERVICES ARE NOT A SUBSTITUTE FOR EMERGENCY MEDICAL HELP AND CANNOT BE USED IN THE EVENT OF A MEDICAL EMERGENCY. You should always seek the advice of your physician or other qualified health provider, with any questions you may have regarding personal health or a medical condition, including diagnosis and treatment for your specific medical needs. You should never disregard or delay in seeking professional medical advice due to information you have obtained from the Services.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. If you are under 18 years of age, your use of the Services is subject to requirements of parental consent, in which case your supervising parent or legal guardian is considered the user under these Terms of Service and is responsible for any and all activity. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party (unless you are a parent or legal guardian using the Services for your minor child).
To sign up for the Services, you must register for an account on the Services (an “Account”) with your email address or log in through your online account with a third party service provider (e.g., Facebook) (“Third Party Account”). You must provide accurate and complete information and keep your Account information updated. You shall not use any other person’s email address to register for an Account. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account by following the instructions on the Site or through the Services.
By using the Services through your Third Party Account, you permit us to access certain information from such Third Party Account for use by the Services. You may control the amount of information that is accessible to us by adjusting your Third Party Account’s settings.
- For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, location information, messages, images, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, other types of information and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
- User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. Any testimonials you may provide us at our request shall be User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
- Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
- Use License. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for personal, non-commercial use of the Services. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use of the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
- License Grant. By submitting User Content through the Services or otherwise to us, you hereby grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You irrevocably and forever waive any rights you may have regarding your User Content being altered or manipulated in any way that may be objectionable to you. We reserve the right to refuse to accept, post, display, or transmit any of your User Content in our sole discretion. You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive, perpetual license to access your User Content that is publicly available to such user through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. For clarity, (i) any information you submit to the Services that you do not publicly post through the Services will not be shared with other users (for example, your Subscription information will not be shared with other users), and (ii) the foregoing license granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
- Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation to, (i) remove, block, screen, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
- Except for User Content, which you retain the copyrights and any other proprietary rights to the User Content you post to the Site and/or Services, you acknowledge that Nexwear owns the Services and all intellectual property rights and moral rights therein, including without limitation all copyrights, trademarks and trade dress. Except for the limited access expressly provided in these Terms of Service, neither these Terms of Service nor your access to the Services transfers to you any right, title or interest in or to such intellectual property rights. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms of Service. Except as expressly provided by us, none of the Services may be copied, displayed or transmitted in any way.
- You agree that submission of any ideas, suggestions, documents, questions, bug or system problem reports, modifications and/or proposals to us through email, mail, phone or its suggestion, feedback, wiki forum or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations or confidentiality) with respect to such Feedback and are free to use or disseminate that Feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights for any purpose.
- RULES OF CONDUCT.
- As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
- You shall not (and shall not permit any third party to) either (1) take any action or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy in Section 16 below);
- you know is false, misleading, untruthful or inaccurate;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
- impersonates any person or entity, including any of our employees or representatives; or
- includes anyone’s identification documents or sensitive financial information.
- You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; (vii) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services or any features that prevent or restrict use or copying of any Content accessible through the Services, or (viii) otherwise take any action in violation of our guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
- We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
- THIRD PARTY SERVICES.
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. If you use a third-party website or application and allow them to access your personal information, you do so at your own risk.
- Nexwear SUBSCRIPTIONS AND PURCHASES.
- Subscriptions; Automatic Renewal; Changes. Please see our Site for a current description of the subscriptions we offer through the Services (“Subscription”, in the singular, or “Subscriptions”, in the plural, as the case may be), how to place an order for a Subscription and our policies with respect to changing or cancelling a Subscription. Before submitting your order for a Subscription, you must select the products you would like to purchase and select the quantity and frequency. When you submit your order for a Subscription, you will receive notice that your Subscription has been created and that your first order will be processed. Your Subscription will thereafter automatically renew and create a new order according to your chosen delivery schedule at the then-current price for the product(s) ordered, until you cancel. Prior to the processing of each subsequent order of your Subscription, you will receive a notice including your estimated delivery date, the last date to modify your order and the estimated pricing. The amount charged for a product in your Subscription will be the price of that item on our site at the time your order is processed. The total cost charged to your Payment Method (as defined below) for each Subscription order will be the price of the item, plus any applicable shipping charges and sales tax. Any credit balances on your Account may be applied toward the balance of your order, pursuant to these Terms of Service, before charging any remaining balance to your Payment Method.
You acknowledge that Subscriptions have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. For a given Subscription, you can change your preferences in your Account, where you can adjust, skip or cancel such Subscription. Any changes must be made at least twenty-four (24) hours before your next ship date. Our Site will let you know if you can still modify the next shipment before it ships.
The charge for each Subscription shipment will be automatically billed to the Payment Method used to create your Subscription or as otherwise directed by you. If we are unable to complete your Subscription order with the payment method you used to create your Subscription, you authorize us to update your Subscription with another Payment Method in your Account and to charge the Payment Method for your Subscription order.
Your Subscription will remain in effect until it is cancelled. You may cancel at any time by going to your Account. We may, at our sole discretion, terminate your Subscriptions at any time without notice. If we do so, you will only be charged for orders that have been shipped to you.
- One-Time Purchases. Please see our Site for a current description of the eligible one-time purchase products you can purchase through the Services (“One-Time Purchase”). If you choose to make a One-Time Purchase, such One-Time Purchase will be shipped to you with the next shipment of your Subscription.
- Order Processing. All orders are subject to acceptance by us. We may choose not to accept your order, whether a Subscription or One-Time Purchase, for any reason without liability to you, and Nexwear reserves the right to refuse or cancel any order or transaction at any time, in its sole discretion. For example, we may choose to not process or to cancel your order when a product is out of stock or has been mispriced or if we suspect the request is fraudulent. If we decide not to process your order or if we cancel all or a portion of your order, Nexwear will either not charge you for the applicable item(s) or provide you with a refund for the applicable item(s).
- Risk of Loss. All items purchased from Nexwear are made pursuant to a shipment contract. This means that the risk of loss and title for all products you order passes to you upon our delivery to the carrier (such as FedEx, UPS, or USPS).
- Returns and Exchanges. Unfortunately, due to the nature of our product, we cannot accept returns or exchanges. We understand that relationships don’t always work out and we hope you’ll come back to try our new products. Except as explicitly provided for in these Terms of Service, all fees and sales are FINAL AND NON-REFUNDABLE to the fullest extent permitted by law and any refunds or credits shall be made in our sole and absolute discretion. Our decision, if any, to issue a refund or credit shall not entitle you or any other user of the Services to any discounts, credits or refunds in the future for similar events and/or occurrences.
- In order to submit an order through the Services, you must use a valid credit card or other payment method accepted by the Services (which accepted payment method may change from time to time in Nexwear’s sole discretion) (your “Payment Method”), with full authority to use it. Nexwear reserves the right, in its sole discretion, to take steps to verify your identity and/or eligibility to process your order. Please note that any payment terms presented to you in the process of placing an order through the Services are deemed part of this Agreement. We use a third-party payment processor (the “Payment Processor”) to allow you to pay for orders through the Services, which Payment Processor we may change from time to time in our sole discretion. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to purchase products through the Services, you agree and authorize , through the Payment Processor, to (i) pay us all charges at the prices then in effect for your purchase in accordance with your Payment Method, and (ii) allow us to charge your Payment Method. Such charges for your purchase may include shipping fees and state and local sales taxes, the amount of which varies due to factors including the type of item purchased and the shipping destination. You agree to make payment using your selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if the payment for your order has already been requested or received. FOR SUBSCRIPTIONS, WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO YOUR ACCOUNT.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your applicable order upon demand.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR PAYMENT METHOD. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR PAYMENT METHOD CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE THROUGH YOUR ACCOUNT. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR YOUR SUBSCRIPTION UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION THROUGH THE SERVICES.
- Change in Amount Authorized. If the amount to be charged to your Payment Method varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Reaffirmation of Authorization. Your non-termination of a Subscription reaffirms that we are authorized to charge your Payment Method for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to order the Subscription.
- Promotional Credits. From time to time, Nexwear may choose to issue a certain number of credits (“Promotional Credits”) to your Account (the “Program”). In addition to any specific rules and descriptions for each issuance of Promotional Credits, which are incorporated herein, the following terms apply. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT ACCEPT PROMOTIONAL CREDITS THROUGH THE SITE.
- Promotional Credits, the number of Promotional Credits, and the redemption value of Promotional Credits and any restrictions on the use of Promotional Credits, are issued at Nexwear’s sole discretion to the fullest extent of the law. Any Promotional Credits issued shall be automatically redeemed at checkout on your next shipment(s) through the Services, until the Promotional Credits are fully redeemed. You acknowledge that even if Promotional Credits are redeemed on a shipment, you may still need to pay for expedited shipping if you choose expedited shipping for such shipment and you do not have enough Promotional Credits to cover the full cost. Any remaining balance on the purchase amount for a given shipment after Promotional Credits are fully redeemed is your sole responsibility. You cannot choose when (or when not) to redeem any Promotional Credits in your Account.
- To the fullest extent of the law, Promotional Credits automatically expire and are forfeited at the date that is three (3) years after the date such Promotional Credits are issued AND THERE IS NO DORMANCY FEE. Promotional Credits are only valid for redemption on the Services and are void where prohibited or restricted by law. Promotional Credits are promotional in nature and are not legal tender. Promotional Credits are non-transferable, non-exchangeable, have no value and cannot be used for cash back or sold. Nexwear reserves the right, in its sole discretion at any time, to void any Promotional Credits, or to cancel, suspend, terminate or modify any aspect of the Program, with or without notice to you. Nexwear also reserves the right, in its sole discretion, to terminate your participation in the Program at any time, with or without cause, with or without notice, effective immediately, including without limitation if Nexwear deems or suspects any violation of these terms and conditions, cheating, fraud or tampering with the operation of the Program.
- By participating in the Program, you agree to release and hold harmless Nexwear, and its affiliates, suppliers, partners, parent companies, subsidiaries, employees, contractors, directors, officers, agents, and representatives, from any and all economic liabilities, claims, damages, loss, harm, costs or expenses, including without limitation property damage, that arise from or relate to in any way the Program and/or use or misuse of Promotional Credits. THIS SUB-SECTION 8.k(iii) APPLIES ONLY TO ECONOMIC DAMAGES AND DOES NOT APPLY TO CLAIMS OF FRAUD OR PERSONAL INJURY.
- Other Credits. From time to time, Nexwear may choose to issue a certain number of non-promotional credits (“Other Credits”) to your Account. Other Credits include, without limitation, credit issued to you for any returns (that we may reject or accept in our sole direction and that we generally do not accept) or for credit issued to you for a minor error with our third-party vendors or carriers. In addition to any specific description of the issuance of Other Credits, which are incorporated herein, the following terms apply. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT ACCEPT OTHER CREDITS THROUGH THE SITE.
- Other Credits, the number of Other Credits, and the redemption value of Other Credits, and any restrictions on the use of Other Credits are issued at Nexwear’s sole discretion to the fullest extent of the law. Any Other Credits issued shall be automatically redeemed at checkout on your next shipment(s) through the Services, until the Other Credits are fully redeemed. You acknowledge that even if Other Credits are redeemed on a shipment, you may still need to pay for expedited shipping if you choose expedited shipping for such shipment and you do not have enough Other Credits to cover the full cost. Any remaining balance on the purchase amount for a given shipment after Other Credits are fully redeemed is your sole responsibility. You cannot choose when (or when not) to redeem any Other Credits in your Account.
- THERE IS NO DORMANCY FEE. Other Credits are only valid for redemption on the Services and are void where prohibited or restricted by law. To the fullest extent of the law, Other Credits cannot be used for cash back or sold.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are fully earned and non-refundable to the fullest extent of the law. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- WARRANTY DISCLAIMER.
- TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE SITE, SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. NEXWEAR, ON BEHALF OF ITSELF AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, PARTNERS, SUCCESSORS, ASSIGNS AND CONTENT PROVIDERS (COLLECTIVELY THE “NEXWEAR PARTIES”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE; (B) DOES NOT WARRANT THAT THE SITE, SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE OPERATION OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE OR SECURE; (C) DOES NOT WARRANT THE SITE, SERVICES OR CONTENT WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY WARRANTIES REGARDING THE USE OF THE SITE, SERVICES OR CONTENT WITH RESPECT TO THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOUR USE OF THE SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN RISK.
- THE DISCLAIMER OF WARRANTIES SET FORTH IN THIS SECTION IS PART OF THE BARGAIN BETWEEN YOU AND NEXWEAR.
- YOU ACKNOWLEDGE THAT THE NEXWEAR PARTIES HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE TRUTH OR ACCURACY OF ANY USER CONTENT, OR THE ABILITY OF ANY USER TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION. IN ADDITION, NEXWEAR PARTIES ARE NOT AFFILIATED WITH, AND HAVE NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY PAYMENT PROCESSOR OR THIRD PARTY ACCOUNT), AND THE NEXWEAR PARTIES HAVE NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTIES.
- NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT THE NEXWEAR PARTIES’ WARRANTIES, TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL IMPLIED WARRANTY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- You shall defend, indemnify, and hold harmless the Nexwear Parties from all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liabilities, claims, and expenses, including reasonable attorneys’ and accounting fees, that arise from your User Content, your purchase of any products or services in connection with the Site and/or Services, your misuse of the Services, your violation of these Terms of Service, or your infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Nexwear Parties 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 hereby agree to release the Nexwear Parties from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including Payment Processors, Third Party Accounts, and other users of the Site and/or Services) in connection with the Site and/or Services or any product or service purchased by you on the Site and/or Services. In addition, you waive California Civil Code Section 1542 and any other applicable law or statute, which says, in substance: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY."
- LIMITATION OF LIABILITY.
- THE NEXWEAR PARTIES SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SITE OR SERVICES, OR ANY OTHER SUBJECT MATTER OF THESE TERMS OF SERVICE, FOR:
- ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE NEXWEAR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES);
- THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES;
- ANY AMOUNTS IN EXCESS OF US$500.00 IN THE AGGREGATE FOR ALL CLAIMS FROM A GIVEN USER WITH RESPECT TO THE SITE AND/OR SERVICES; OR
- ANY MATTERS BEYOND THE NEXWEAR PARTIES’ REASONABLE CONTROL.
- THE NEXWEAR PARTIES SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF YOUR USER CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. THE NEXWEAR PARTIES ASSUME NO FINANCIAL LIABILITY FOR LOSSES INCURRED DUE TO SERVICE INTERRUPTIONS WHICH ARE NOT THE DIRECT RESPONSIBILITY OF THE NEXWEAR PARTIES.
- IF, NOTWITHSTANDING THE FOREGOING, A NEXWEAR PARTY IS FOUND TO BE LIABLE FOR ANY ECONOMIC DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SERVICES OR CONTENT, THE RELEVANT NEXWEAR PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID NEXWEAR FOR THE SUBSCRIPTION OR PURCHASES, AS APPLICABLE, OR (B) THE SUM OF FIVE HUNDRED DOLLARS (US $500). THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE SERVICES OR CONTENT AND DOES NOT APPLY TO PERSONAL INJURY OR ANY INJURY CAUSED BY ALLEGED FRAUD.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS OF SERVICE LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS OF SERVICE. NOTHING IN THESE TERMS OF SERVICE AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.
- THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY. THIS SECTION 12 DOES NOT APPLY TO CLAIMS OF FRAUD OR PERSONAL INJURY.
- EACH PROVISION OF THESE TERMS OF SERVICE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF SERVICE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- ARBITRATION AGREEMENT.Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.
- Dispute Resolution. Before filing a claim against Nexwear, you agree to attempt to informally resolve your dispute with Nexwear by contacting Feedback@nexwear.com. We will contact you via email to try to resolve the dispute. If the dispute is not resolved within 15 days of submission, you or Nexwear may bring a formal proceeding.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Nexwear, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Nexwear 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.
- 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 us at the following address: 1434 E. Lake Mead Parkway, Henderson, NV 89015. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures availableat 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.com or 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 cannot obtain a waiver from JAMS, Nexwear will pay them for you. In addition, Nexwear will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country 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.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) 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 arbitration will decide the rights and liabilities, if any, of you and Nexwear. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. 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.
- Waiver of Jury Trial. YOU AND NEXWEAR HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Nexwear are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.a and b 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.
- 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, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Nevada. All other claims shall be arbitrated.
- 30-Day Right to opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 1434 E. Lake Mead Parkway Henderson, NV 89015, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your company username (if any), the email address you used to set up your company account (if you have one), and an unequivocal 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, or may enter in the future, with us.
- Except as provided in subsection 13.f, 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.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Nexwear.
- Notwithstanding any provision in this Agreement to the contrary, we agree that if Nexwear 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 Nexwear at the following address: 1434 E. Lake Mead Parkway Henderson, NV 89015
- GOVERNING LAW AND JURISDICTION.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the conflict of laws provisions thereof, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Clark County, Nevada.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
- DMCA COPYRIGHT POLICY.
- Nexwear has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
- Procedure for Reporting Copyright Infringement. If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Nexwear is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, e-mail address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; andA statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(c) Please contact the Designated Agent to Receive Notification of Claimed Infringement for Nexwear at Feedback@nexwear.com or at:
1434 E. Lake Mead Parkway
Henderson, NV 89015
- INTERNATIONAL USE.
The Site can be accessed from countries other than the United States, but may contain products and/or references that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use the Site and/or Services outside the United States you are responsible for complying with your local laws and regulations.
- Entire Agreement. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services.
- Binding Effect. The terms, conditions, provisions, and undertakings contained in this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and assigns.
- If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
- Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, (1) inclement weather or acts of God; (2) acts of war, terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes; (4) labor trouble; (5) acts of government or public bodies; (6) telecommunications, network, computer, server or Internet downtime; (7) unauthorized access to our information technology systems by third parties; or (8) mechanical, electronic or communications failure or degradation.
- These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
- No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
- Notices; Consent to Electronic Communications.
- Any Notice from you to us shall be sent in writing (i) to our mailing address at 1434 E. Lake Mead Parkway Henderson NV 89015, or (ii) by email to Feedback@nexwear.com. All notices sent to us electronically by email shall be deemed to have been duly given when receipt is electronically confirmed.
- Unless otherwise specified in these Term of Service, all notices under these Terms of Service shall be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
- No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
- The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
- Claims; Statutes of Limitation. YOU AND NEXWEAR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Attorneys’ Fees and Costs. In the event of arbitration or if a lawsuit is filed to enforce any rights or obligations under these Terms of Service, the parties agree that the prevailing party shall be entitled to reasonable attorneys’ fees and costs.
- Contact and Disclosures.You may contact us at Feedback@nexwear.comor the following address: 1434 E. Lake Mead Parkway Henderson NV 89015. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.