THE TERMS INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
TYPES OF USERS
You may simply browse the Services as a visitor or you may create an account (“Account”) and register with us and/or connecting to the Services via an SNS (defined below) to become a “Client”. You must be a Client to order shipments.
FITKNITS SHIPMENTS AND RETURNS
Returns. If you want to return any of the Products in your shipment, simply place them in the return package we provide and mail them back to us at no cost to you. Any returned products must be postmarked no later than five (5) days after you receive the package (the “Return Date”). We will assume that you have chosen to keep any and all Products in the shipment that you do not postmark back to us by the Return Date, and we will charge your Account for those Products any time after that day. Any exceptions permitting a return postmarked longer than the Return Date must be requested in a timely manner and may be granted at the sole discretion of FitKnits. Products must be returned unused and in the original condition with any and all product tags still attached. Unfortunately, we cannot guarantee that you will be able to exchange or replace any item.
Legal Details. OUR SCHEDULING OF A SHIPMENT IS AN OFFER TO PURCHASE THE PRODUCTS IN THE SHIPMENT, WHICH YOU MAY RETRACT BY RETURNING THE PRODUCTS YOU DON’T WANT AS DESCRIBED ABOVE. WE MAY ACCEPT YOUR REQUEST FOR A SHIPMENT BY PROCESSING YOUR PAYMENT OF THE MEMBERSHIP FEE (AS DESCRIBED BELOW) AND SHIPPING YOU THE SHIPMENT. For any reason, we may decline to accept your request for a shipment. If we decline to accept your request for a shipment, we may attempt to notify you at the email address you provided. All Products will be deemed accepted by you upon shipment, and title to and risk of loss passes to you when we provide the Products to a common carrier.
MEMBERSHIP FEE AND PAYMENT
When we ship you a shipment, we will charge you a non-refundable “membership fee” in the amount set forth on the Services. The membership fee will be charged to your credit card or other payment method between the time the order is placed and we ship your shipment. Within five (5) days of receiving your shipment, we request that you purchase through our Services any Products you would like to keep and return any Products you don’t want. If you choose to keep Products from your shipment, the membership fee will be credited towards the purchase price of those Products. To pay for an order, you will need to provide FitKnits with the information necessary to process an order from you, including your shipping address and the billing information. You may pay for the membership fee and any Products from your order via credit card or other payment method then available on the Services. If you have a credit in your Account at the time of processing Product purchases, the credit will be applied before charging your credit card or other payment method then available. By submitting your payment information to us, you authorize us to charge your credit card or other payment method then available in accordance with this policy. If you receive FitKnits automatically, you agree to the membership fee being charged to the card on file on a recurring basis according to the frequency you selected as right for you until you cancel the membership or automatic shipments by emailing us at firstname.lastname@example.org stating "I want to cancel my FitKnits membership" from the email address then currently associated with your account. You may cancel automatic FitKnits shipments at any time at least fourteen (14) days' notice before the next FitKnits shipment is due to ship. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We will not be liable in the event your children or others acting with or without your permission use your credit card, PayPal account, or other means of payment to make orders on the Services; however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your credit card or other payment method.
PRICING AND PRODUCTS
FitKnits does not disclose the prices of its Products until you receive a shipment. While FitKnits makes efforts to follow the style and price preferences you express in your Membership Profile, we do not guarantee that every item in your shipment will comply with those preferences. You are responsible for paying for all Products in your shipment, whether they conform to your Style Profile or not, unless you return the Products in accordance with our return policy. You are responsible for the payment of any membership fees, and state and local sales taxes that apply to your order where we elect or are required to collect and remit such taxes. If we don’t collect the applicable sales tax, you are responsible to pay the applicable use taxes. FitKnits provides certain promotions or credits to customers. Depending on the type of promotion or credit offered, it may reduce the amount of state and local sales taxes that apply to your order where we elect or are required to collect and remit such taxes. The application of the promotion or credit will be reflected on your receipt.
GIVE AS GIFT
You may purchase FitKnits as a gift through the Services (“FitKnits Gift(s)”). FitKnits Gifts can be redeemed through our Services for Products or Membership services. FitKnits Gifts cannot be redeemed for cash or credit except where required by law. FitKnits is not responsible for lost or stolen FitKnits Gifts. Risk of loss and title for FitKnits Gifts pass to the purchaser upon electronic transmission to the recipient. For avoidance of doubt, such recipient may not always be you. FitKnits reserves the right to close accounts and request alternative forms of payment if a FitKnits Gift is fraudulently obtained or used on the Services.
ACCESS TO THE SERVICES
OWNERSHIP OF INTELLECTUAL PROPERTY
You hereby grant, and you represent and warrant that you have the right to grant, to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use Your Content (in whole or in part) for the purposes of including Your Content in the Services and operating, providing and promoting the Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to Your Content.
GENERAL RULES OF USER CONDUCT
You agree (i) not to use (ii) take any action or (iii) make available any content on or through the Services that: (A) violates any third-party right, including any intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (C) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (D) involves commercial activities and/or sales without our prior written consent; (E) impersonates any person or entity; (F) interferes with or attempt to interfere with the proper functioning of Our Technology in any way not expressly permitted by the Terms; or (G) attempts to engage in or engages in, any potentially harmful acts that are directed against Our Technology.
RIGHT TO SUSPEND
FitKnits reserves the right, in its discretion, to suspend your Account, your use of the Services or the sending of shipments at any time at our discretion including, as necessary to protect the security or operation of the Services.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to Products or the Services (collectively “Feedback”), you agree we may use the Feedback to: (a) improve our Services or any Products and (b) promote the Services and Products, and that you will not be due any compensation for your Feedback that is used in these ways. To the extent that we have your name, likeness, or voice, this will be part of the Feedback and you agree that we may use your name, likeness and voice in the same manner that we can use other Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Services or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
MODIFICATIONS TO THE SITE OR SERVICES
We reserve the right to modify or discontinue the Services (including shipments) with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Services. If you object to any such changes, your sole recourse will be to cease access to the Services. Continued access to the Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SERVICES.
THIRD PARTY CONTENT AND OTHER WEBSITES
DISCLAIMER OF WARRANTIES
THE SERVICES AND ALL CONTENT, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES ARE PROVIDED BY FITKNITS “WITH ALL FAULTS” AND ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. FITKNITS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR ANY CONTENT, PRODUCTS OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THE SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THESE SERVICES AND PRODUCTS PURCHASED THROUGH THE SERVICES IS AT YOUR SOLE RISK.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO COLLECT PAYMENT, FACILITATE THE FULFILLMENT OF ORDERS, AND PROVIDE ACCESS TO THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PRODUCTS OR FOR ANY INFORMATION APPEARING ON ANY OTHER SITE LINKED TO OUR SERVICES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (i) THE TOTAL AMOUNT OF YOUR ORDERS IN THE THREE (3) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO OUR LIABILITY, AND (ii) TEN DOLLARS (U.S. $10.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.
You hereby release FitKnits, its officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Services; or (ii) your purchase of any Products. You hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor 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 debtor" and you waive any other similar provision of the laws of any other applicable jurisdiction.
We respect the intellectual property of others, and we ask you to do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on our services that you claim is infringing and that you request us to remove;
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
For notice of claims of copyright infringement on the Services, please submit the aforementioned information to FitKnits at email@example.com
ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY.
Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with us and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to us should be sent to: Harvard Business Services, Inc. 16192 Coastal Highway, Lewes, DE 19958. After the Notice is received, the parties may attempt to resolve the claim or dispute informally. If the parties do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration will be conducted by telephone, online and/or based solely on written submissions; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If either party pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between the parties in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts will be of no force and effect and will be severed and the remainder of this Arbitration Agreement will continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.
Survival. This Arbitration Agreement will survive the termination of your relationship with us.
Small Claims Court. Notwithstanding the foregoing, either party may bring an individual action in small claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures will not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets will not be subject to this Arbitration Agreement.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Orange County, California for such purpose.
Harvard Business Services, Inc. 16192 Coastal Highway, Lewes, DE 19958
Last updated: November 16, 2016