DRAPED UP, INC TERMS OF SERVICE
Draped Up is a marketplace that allows users to offer, sell and buy high-quality men’s clothing in a variety of pricing formats and locations. Any actual contract for sale is directly between the applicable sellers and buyers. Draped Up is not a traditional auctioneer. Please pay particularly close attention to our listing and purchase conditions and shipping policies, as described below [and in our FAQ at www.draped-up.com/about.
Acceptance of Terms of Service5. By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to 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 of the 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 Service7 by this reference. These Terms of Service8 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.
Eligibility. 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. 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 Service9 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 Service10 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.
Registration. To use certain of the Services, you may need to register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. 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 sending a request to firstname.lastname@example.org.
Definition. For purposes of these Terms of Service11, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, 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. 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 Service12, 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 purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using 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.
Sharing. Occasionally, the Services will expressly allow you to redistribute, or “share,” certain Content for personal, non-commercial use, such as through your social network account, blog or email when you think the Content will be of interest to others in your social network. When Content is authorized for sharing, we will clearly identify the Content that you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. However, please note that we may revoke this authorization at any time. Additionally, if you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
License Grant. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sub licensable 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 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 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, the foregoing license grants 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.
Reviews. We encourage users to participate in the Draped Up community by posting reviews and providing feedback about their experiences. However, if you choose to do so, please only provide contributions that represent your honest and accurate experiences and opinions, without violating this Agreement.
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, 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 Service13), or for no reason at all and (ii) to remove or block any Content from the Services. We neither endorse nor guarantee the accuracy, propriety, or timeliness of any third party or User Content. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate, including without limitation (x) with regards to product specifications, colors, textures, size, condition, value, origin, authenticity, functionality or appropriateness for use; or (y) that the Content on the Services reflects updated information in areas such as availability or market developments such as product recalls. We therefore encourage you to independently confirm with other sources any data, images, information, suggestions, guidance or other materials or Content made available on or through the Site or Services.
How Draped Up’s Services Work. As part of the Services, you or other Draped Up users may choose to post information to the Services about goods that you or such other users would like to offer for sale to other Draped Up users (such information, a “Listing,” and such users, “Sellers”). Other Draped Up users who may be potential buyers (“Buyers”) may ask the applicable Seller questions and offer to pay an amount of money of their choosing in order to obtain the goods included in the applicable Listing. If a Seller accepts such an offer or makes a counter-offer, the applicable potential Buyer(s) will be sent a link through the Services that will provide them with the opportunity to checkout via a third party payment processor (a “Payment Processor”). A Seller is free to accept and counter offers of multiple potential Buyers simultaneously. The first potential Buyer to successfully submit the agreed upon payment amount (whether an offer or counteroffer) to a Seller will become the winner of such goods (such Buyer, the “Winning Buyer”). If such Seller Accepts Payment (as defined below), that Seller will ship such goods to the applicable address provided to such Seller by such Winning Buyer in accordance with this Agreement, at which time such Winning Buyer will become the owner of such goods.
Third Party Services. The Services may permit you to link to other websites, services or resources on the Internet (“Third Party Sites”), and other websites, services or resources may contain links to the Services, in each case, such as a Payment Processor that you may choose to link to your Account or otherwise use in connection with the Services. When you access Third Party Sites 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.
Listing and Purchase Conditions
a Listing Conditions. As part of the Services, you may choose to post a Listing to the Services. You hereby acknowledge and agree that: (i) you are solely responsible for the accuracy and content of any Listing; (ii) we cannot guarantee exact Listing durations; (iii) User Content, including without limitation any Listing, that violates this Agreement may be modified or deleted at our sole discretion; (iv) we may modify or move certain Listings from one marketplace to another (e.g., from Draped Up to Draped Up Basics) at our sole discretion; (v) we reserve the right in our sole discretion to delete any Content (including Listings) for any reason whatsoever without notice to you, including without limitation because we believe for any reason that a Listing may include replica (and not original) or counterfeit items or for curatorial or editorial reasons; (vi) [appearance or placement of Listings in search and browse results will depend on a variety of factors (for example, buyer's or seller’s location, search query and history) and, as such, a Listing may not appear in some search and browse results regardless of the sort order chosen by the buyer]; (vii) when you receive payment from an applicable Winning Buyer equal or greater to the amount of money offered by such Winning Buyer or counteroffered by you, as applicable, in connection with an applicable Listing in accordance with the process set forth in Section 5 above, you must use the Services to notify such Winning Buyer within seventy-two (72) hours of receipt of such payment whether you intend (A) to reject and refund to such Winning Buyer the full amount of payment that you received and not send such goods to such Winning Buyer (“Reject Payment”) , which refund you agree to remit to such Winning Buyer in full within than seventy-two (72) hours after you Reject Payment, or (B) to accept and keep such payment and agree to ship such goods to such Winning Buyer (“Accept Payment”) within fourteen (14) calendar days after you Accept Payment; (viii) if you Accept Payment, you enter into a legally binding contract with the applicable Winning Buyer, pursuant to which (A) you agree to ship such goods to such Winning Buyer in accordance with this Agreement and (B) title to and ownership of such goods automatically passes to that Winning Buyer upon your shipment of such goods; and (ix) we do not transfer legal ownership of applicable goods from an applicable Seller to an applicable Winning Buyer and have no responsibility or liability in connection therewith.
- Purchase Conditions. As part of the Services, you may submit an offer to buy goods included in a Listing through the Services. All goods included in Listings are provided by Draped Up users and not Draped Up. You hereby acknowledge and agree that: (i) you are solely responsible for reading the full item listing before offering a bid or commitment to buy; (ii) when you use the Services to commit to pay a certain amount of money to an applicable Seller for goods included in an applicable Listing and you are notified through the Services that such Seller accepts such offer, you enter into a legally binding contract with such Seller to attempt in good faith to purchase such goods in accordance with the process described in Section 5 above; and (iii) we do not transfer legal ownership of items from the Seller to the Winning Buyer and have no responsibility or liability in connection therewith; (iv) your purchases through the Services are transactions between you and the applicable Draped Up user and not with us or any of our affiliates; (v) we do not in any instances make any representations, warranties or guarantees as to whether an applicable Seller will choose to Accept Payment or Reject Payment, and we have no liability to you with respect to any such choice; (vi) we are not a party to your payment transaction for such purchases; (vii) we do not employ or control any Third Party Sites, (viii) we do not design, manufacture, store, ship or otherwise control any goods or services made available for purchase by Draped Up users or Third Party Sites and (ix) we do not make any representations or warranties with regard to any goods made available through the Services or your potential related experiences.
Prior to purchasing products from any third party (including any Draped Up user) described on the Site or Services, you are advised to independently verify the applicable information and read any applicable third parties’ sales, legal and privacy policies. Although we may choose in our sole discretion to intervene or attempt to resolve a dispute between you and other Draped Up users or Third Party Sites, you agree that we have no obligation to do so and that all transactions are ultimately solely between you and the applicable Draped Up users or Third Party Site. In order to submit an offer to purchase goods through the Services, you must be at least 18 years old and have a valid Payment Method (as defined below), with full authority to use it.
Prices; Colors; Availability
Any prices of goods included in any Listing are set by the Draped Up user that provides the applicable goods and are subject to change.
Despite our efforts, errors may appear from time to time, and additionally, some of the Content you find on the Services was not created, edited, or posted by us (for example, Listings or user comments, reviews and ratings).
Although we try to make sure the Services only display accurate prices and offer and counteroffer amounts, and we try to assist in correcting errors as we become aware of them, you may occasionally encounter mispriced goods or inaccurate offer or counteroffer amounts on the Services. Therefore, we cannot guarantee the accuracy or timeliness of any Content made available through the Services. Occasionally, there may be information on our Site or Services that contains typographical errors, inaccuracies or omissions, including related to descriptions, pricing, offers or availability of goods included in Listings. If any information on the Site or Services is inaccurate, we reserve the right to correct any errors, inaccuracies or omissions, change or update information or cancel any transactions through the Services at any time without prior notice.
Please note that the colors of goods included in Listings may depend on the settings of your monitor or screen, and therefore the color of goods on your display may differ from the goods that you actually receive.
Although we try to display updated Listings on the Services, the availability of goods on the Services may change at any time, without notice.
A Seller may decide in its sole discretion whether to Accept Payment or Reject Payment.
Title and Transaction Restrictions. You acknowledge that at no time will we take title to any goods included in a Listing. You hereby represent and warrant that you are the owner of any goods that you include in a Listing, free and clear of any liens or encumbrances, and when you Accept Payment from another Draped Up user who successfully submits payment to you for such goods and becomes the Winning Buyer in accordance with this Agreement, you will ship such goods to such Winning Buyer in accordance with this Agreement, and upon such shipment, title to and ownership of those goods automatically passes to that user. We do not take, assume or transfer legal ownership of any items included in a Listing. You, as a Seller, acknowledge that you hold title to any such items, we are not a consignee, bailee, agent or auctioneer with respect to such items and we are merely an interactive service provider.
International Buying and Selling; Currency Conversion. Our Services are accessible to international Sellers and Buyers. Sellers and Buyers are responsible for complying with all laws and regulations applicable to any international sale, purchase or shipment of goods. If explicitly stated in an applicable Listing, you may restrict international Buyers from purchasing applicable goods using the Services. We may offer certain features or functionality of particular interest to international Sellers and Buyers, such as local currency conversion services (which may be made available or provided by Third Party Sites). The accuracy and availability of any such currency conversion services are not guaranteed.
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 Service14. 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 (a) take any action or (b) 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 (www.draped-up.com/dmca-copyright-policy); 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, in each case 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; or (vii) 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 Service15, 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.
Payments and Billing
Payment Processing. We do not process payments for goods included in Listings posted to the Services – that is handled by a Payment Processor. The processing of payments will be subject to the terms, conditions and privacy policies of the applicable Payment Processor. For each good you purchase through the Services, you agree to pay the agreed upon payment amount for applicable for the goods. You hereby acknowledge and agree that the total charge for any purchase in the amount of an accepted offer or counteroffer in connection with an applicable Listing may include shipping fees and state and local sales tax, the amount of which varies (e.g., due to factors including the type of item purchased and the shipping destination). Each Draped Up user shall be solely responsible for all applicable sales taxes, or other taxes, customs, import/export charges or similar governmental charges on orders shipped to any other state or on orders shipped outside the United States.
Payment Method. The terms of any payment in connection with the Services will be based on the applicable payment method that you authorize through the Services (“Payment Method”) as may be determined or affected by agreement(s) between you and the applicable Payment Processor, financial institution, credit card issuer or other provider of your chosen Payment Method.
Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.
Billing. We use a Payment Processor to bill you through a payment account linked to your account with the applicable Payment Processor, which account is linked to your Account on the Services (your “Billing Account”), for use of the Paid Services. 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 use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen Payment Method. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE THE EMAIL ADDRESS OR ACCESS CREDENTIALS ASSOCIATED WITH YOUR ACCOUNT WITH AN APPLICABLE PAYMENT PROCESSOR), 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, WHETHER FOR YOUR ACCOUNT ON THE SERVICES OR WITH AN APPLICABLE PAYMENT PROCESSOR. CHANGES TO SUCH INFORMATION CAN BE MADE AT YOUR ACCOUNT PAGE. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Change in Amount Authorized. If the amount to be charged to your Billing Account 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.
Holds. To protect ourselves from risk of liability for your actions as a Seller, we may at times recommend that an applicable Payment Processor restrict a Seller’s use of that Payment Processor’s services based on certain factors, including without limitation Selling history, Seller performance, returns, riskiness of the listing category, transaction value or feedback from other Draped Up users, which may result in such Payment Processor imposing such restrictions.
Shipping; Returns. All sales of goods through the Services are binding, final and not eligible for any return or refund of any nature whatsoever. As between Sellers, and us Sellers shall be solely responsible for all shipping costs and customer service issues with respect to any goods sold through the Services at such Seller’s sole expense. Winning Buyers must use the Services to provide the address to which the applicable goods will be shipped to an applicable Seller simultaneously with payment for such goods. Such Sellers shall ship the applicable goods to the address of the Winning Buyer (or their indicated recipient) within fourteen (14) days after such Seller Accepts Payment from such Winning Buyer. As between us and Draped Up users, Sellers and Buyers shall be solely responsible for (i) determining and agreeing to (A) shipping methods for applicable goods and (B) Sellers’ and Buyers’ applicable payment obligations in connection therewith, including payment of any applicable sales or other taxes, and (ii) for complying with all laws and regulations applicable to any sale, purchase or shipment of goods. Sellers shall have the right to determine the shipping methods and costs for the sales of applicable goods and to factor such costs into any decisions of such Seller regarding the acceptance or rejection of any Buyer’s offer, such Seller’s extension of any counteroffer or whether to Accept Payment or Reject Payment in connection with an applicable Listing.
Termination. 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 non-refundable. All provisions of these Terms of Service16, 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.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; how you may interpret or use the Content; or any dispute that may arise between you and any other Draped Up user in connection with the Services or otherwise, including without limitation related to any information or materials included in any Listing, offer to purchase any goods included in any Listing, payment in connection with any Listing, any decisions of a Seller to Accept Payment or Reject Payment or shipment, quality or condition of, or damage to, any goods included in any Listing.
You release us from all liability for your having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or content contained in or accessed through the Services. If you have a dispute with one or more Draped Up users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims, which you may know or suspect to exist in your favor at the time of agreeing to this release.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, 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 OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You may have other rights, which vary from jurisdiction to jurisdiction.
Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your User Content (including any Listings), any agreement or dispute between Draped Up users with respect to any Listing, violation of these Terms of Service17, or infringement by you, or any third party using your Account or identity in the Services, 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.
Limitation of Liability. IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF the greater of (A) fees paid to us for the particular Services during the immediately previous three (3) month period or (B) $500.00. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent of applicable law
Governing Law and Jurisdiction. These Terms of Service18 shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service19 shall be resolved in New York County, New York.
Class Action Waiver – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN NEW YORK, NEW YORK UNDER THE STREAMLINED ARBITRATION RULES AND PROCEDURES (“RULES”) OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”) THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH SUCH RULES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local small claims court, if permitted by that small claims court's rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
Modification. We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service20, 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 Service21 periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service22 constitutes acceptance of those changes.
Apple Device and Application Terms. In the event you are accessing the Services via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (in either case, an “Application”), the following shall apply: Both you and Draped Up, Inc. acknowledge that these Terms are concluded between you and Draped Up, Inc. only, and not with Apple, and that Apple is not responsible for the Application or the Content; The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sub licensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services; You will only use the Application in connection with an Apple device that you own or control; You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application; You acknowledge and agree that Draped Up, Inc., and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application; You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Draped Up, Inc., and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; Both you and Draped Up, Inc acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and Both you and Draped Up, Inc acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these terms, and that upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as the third party beneficiary hereof.
Entire Agreement and Severability. These Terms of Service23 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. If any provision of these Terms of Service24 is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service25 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, mechanical, electronic or communications failure or degradation.
Assignment. These Terms of Service26 are personal to you, and are not assignable, transferable or sub licensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service27 and neither party has any authority of any kind to bind the other in any respect.
Notices. Unless otherwise specified in these Terms of Service28, all notices under these Terms of Service29 will 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; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
No Waiver. Our failure to enforce any part of these Terms of Service30 shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service31. 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 Service32 to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
Headings. The section and paragraph headings in these Terms of Service33 are for convenience only and shall not affect their interpretation.
Effective Date of Terms of Service34: 01/28/2016