THE WORLDS FIRST PROBLEM SOLVING SWIM BRAND!
Terms and Conditions
Welcome to the Swiminista ("SWIMINISTA” or “we” or “us”) website at www.SWIMINISTA.com and other affiliated websites (the "Website").
Please review the following terms and conditions concerning your use of and access to the Website. By accessing, using and/or downloading any materials or content from the Website, you agree to follow and be bound by these terms and conditions (these "Terms" or this “Agreement”). If you do not agree with these Terms, you may not use the Website.
Products, Content, Specifications and Accuracy of Information: We attempt to ensure that information on this Website is complete, accurate and current. Despite our efforts, the information on this Website may be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of any information on this Website. All features, content, specifications, products, colors and prices of products and services described or depicted on this Website are subject to change at any time without notice. Certain measurements and similar descriptions are approximate and are provided for convenience purposes only. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors. The actual color you see, however, will depend on your computer system and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services in this Website at a particular time does not imply or warrant that those products or services will be available at any time. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice and in our sole and absolute discretion, to limit the order quantity on any product or service, to refuse service to any customer and/or to refuse access to the Website by any visitor or customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
GENERAL USE PROVISIONS
All materials provided on the Website, including but not limited to information, documents, products, logos, graphics, sounds, images, compilations, content and services ("Materials" or “Content”), are provided either by SWIMINISTA or by respective third party authors, developers or vendors ("Third Party Providers") and are the copyrighted works of SWIMINISTA and/or its Third Party Providers (or is permitted/licensed to be used by Third Party Providers), unless specifically provided otherwise. Except as stated herein, none of the Materials may be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted and/or otherwise used in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of SWIMINISTA and/or a Third Party Provider. Also, you may not "mirror" or “archive” any Materials contained on the Website on any other server without SWIMINISTA’s prior express written permission.
Except where expressly provided otherwise by SWIMINISTA, nothing on the Website shall be construed to confer any license or ownership right in or to the Materials, under any of SWIMINISTA’s intellectual property rights, whether by estoppel, implication, or otherwise. You acknowledge sole responsibility for obtaining any such licenses. See the "Legal Contact Information" section below if you have any questions about obtaining such licenses. Materials provided by Third Party Providers have not been independently reviewed, tested, certified, or authenticated in whole or in part by SWIMINISTA. SWIMINISTA does not provide, sell, license, or lease any of the Materials other than those specifically identified as being provided by SWIMINISTA.
Any unauthorized use of any Materials contained on the Website may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or communications regulations and statutes. It is your obligation to comply with all applicable state, federal and international laws. You are responsible for maintaining the confidentiality of your account information and password and for restricting access to such information and to your computer. You agree to accept responsibility for all activities that occur under your account or password.
Termination: You or we may suspend or terminate your account or your use of this Website at any time, for any reason or for no reason. You are personally liable for any orders that you place or charges that you incur prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Website at any time without notice.
LINKS TO THIRD PARTY SITES
The Website may contain links or have references to websites controlled by parties other than SWIMINISTA. SWIMINISTA is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party websites. SWIMINISTA is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by SWIMINISTA of the linked website and/or the content and materials found at the linked website, except as specifically stated otherwise by SWIMINISTA. It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of an intrusive nature.
Except where expressly provided otherwise by SWIMINISTA, all comments, feedback, information and data submitted to SWIMINISTA through, in association with or in regard to the Website and/or any other SWIMINISTA goods or services ("Submissions") shall be considered non-confidential and SWIMINISTA’s property. This may not include copyright ownership of images which you may upload, but does include an express license to use said images in any method SWIMINISTA sees fit and make compilations and derivative works thereof in all media now known or hereafter devised. Except as expressly enumerated in the preceding sentence, by providing such Submissions to SWIMINISTA, you agree to assign to SWIMINISTA, as consideration in exchange for the use of the Website, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. You represent that you have the right to grant SWIMINISTA these rights. SWIMINISTA shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide, and that you, not SWIMINISTA, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.
You will not post any Submission that (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity
SWIMINISTA does not accept Submissions from persons under the age of 18 (“Child” or “Children”). Furthermore, SWIMINISTA does not accept any user who is a Child. You are ineligible to use this Website if you are under the age of 18.
All Submissions must be true, and in accordance with the rights of privacy and publicity and all federal, state and international law. You may not upload an image or any likeness of another without their consent. If you do so, SWIMINISTA reserves the right to cancel or suspend your account. Furthermore, SWIMINISTA reserves the right to cancel or suspend your account, if in its sole discretion, it believes you are using SWIMINISTA for improper purposes, or any purpose inconsistent with its business.
LIMITATION OF LIABILITY
TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SWIMINISTA EXCEED $1,000.00. IN NO EVENT SHALL SWIMINISTA OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES to your computer, telecommunication equipment, or other property and/or FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE accessing or USE of, OR INABILITY TO USE, THE WEBSITE AND THE SERVICES ASSOCIATED THEREWITH including but not limited to the downloading of any materials, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF YOUR BREACH, OR RELATED TO YOUR INDEMNITY OBLIGATIONS. THIS PARAGRAPH SHALL NOT AFFECT THE RIGHTS LISTED BELOW IN THE SECTION TITLED “INDEMNITIES”.
LICENSES FROM SWIMINISTA
You are being granted solely a revocable, limited license, in compliance with these terms.
LICENSES FROM YOU
BILLING AND PAYMENT
To the extent you purchase any goods and/or services from SWIMINISTA, you agree to pay for all goods and services ordered from SWIMINISTA and/or its Third Party Providers except as set forth in a writing signed by an authorized representative of SWIMINISTA. You will provide SWIMINISTA with valid and updated credit card or approved purchase order information and with SWIMINISTA and accurate billing and contact information. If you provide credit card or other authorized payment method information to SWIMINISTA, you authorize SWIMINISTA, or a credit card processor of its choosing to bill such credit card or to make such charges as applicable. If SWIMINISTA, in its sole and absolute discretion, permits you to make payment using a method other than a credit card or other authorized payment method, SWIMINISTA will invoice you at, or within a reasonable period of, the time of the purchase request. All amounts invoiced hereunder shall be due within thirty (30) days of the date of the invoice.
SHIPPING AND RETURNS
Your acceptance of these Terms is also an acceptance of SWIMINISTA’s shipping and returns policies, which are located at https://www.swiminista.com/policies/refund-policy
REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that it has the power and authority to enter into this Agreement. SWIMINISTA warrants that it will provide the Website and all goods and services in a manner consistent with its business practices, as SWIMINISTA, in its sole and absolute discretion, deems fit. To the extent that you represent an entity of any type or any individual besides yourself, you represent and warrant that you have the proper authority to enter into this Agreement their behalf.
DISCLAIMER OF WARRANTIES
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY SWIMINISTA, THE MATERIALS ON THE WEBSITE ARE PROVIDED "AS IS," AND ARE FOR USE AS CONTRACTED HEREIN. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, SWIMINISTA AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE WEBSITE, THE MATERIALS, AND THE GOODS AND SERVICES ASSOCIATED THEREWITH INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF GOODS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. SWIMINISTA AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE website and the GOODS, SERVICES AND/OR MATERIALS ASSOCIATED WITH THE WEBSITE, OR THE RESULTS YOU MAY OBTAIN BY accessing or USING THE WEBSITE AND/OR THE GOODS, SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SWIMINISTA AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE WEBSITE OR MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS; OR (C) THE GOODS, SERVICES, MATERIALS, OR THE SYSTEMS THAT MAKE THE SERVICES AND WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT NEITHER SWIMINISTA NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE WEBSITE AND SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SWIMINISTA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY SWIMINISTA, THE WEBSITE AND THE GOODS, SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH ARE PROVIDED TO YOU ON AN "AS IS" BASIS. SWIMINISTA EXPRESSLY DISCLAIMS ANY WARRANTY RELATED TO THE QUALITY OF GOODS AND/OR SERVICES AND THE PERSONS OR BUSINESSES REFERENCED ON THE WEBSITE. YOU USE THIRD PARTY PROVIDERS AND AFFILIATED SERVICES AT YOUR PERIL AND ASSUME ALL RISKS RELATED TO USE OF SAID THIRD PARTY PROVIDERS AND SERVICES.
You shall defend and indemnify SWIMINISTA and its Third Party Providers against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) finally awarded against SWIMINISTA or its Third Party Providers by a court of competent jurisdiction arising out of or in connection with a claim by a third party related to you. SWIMINISTA shall have no indemnification obligation or other liability for any claim of infringement arising from (a) use of the Website and/or the goods, services or Materials associated with the Website other than in accordance with this Agreement; (b) the combination of the Website and/or the goods, services or Materials associated with the Website with any other products, services, or materials; or (c) any third party products, services, or materials.
You will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with your use of the Website, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which SWIMINISTA controls and operates the Website and services associated therewith. Furthermore, you expressly agree not to violate any rights of publicity or privacy of any person, nor defame any person or entity.
SWIMINISTA may give notice by means of a general notice on the Website, electronic mail to your e-mail address on record in SWIMINISTA’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in SWIMINISTA’s account information. You may give notice to SWIMINISTA at any time by letter sent by confirmed facsimile to SWIMINISTA, fax number [(___) ___-____] or by letter delivered by registered mail with return receipt to: Swat.Fame, Inc., 16425 East Gale Avenue, City of Industry, CA 91745. All notices shall be deemed to have been given four days after mailing or 36 hours after sending by confirmed facsimile, email or posting to the Website. Furthermore, SWIMINISTA complies with the Digital Millennium Copyright Act (“DMCA”). Any notices given pursuant to the DMCA shall be given to SWIMINISTA designated agent via email at orders@SWIMINISTA.com or via registered US mail sent return receipt to: DMCA Compliance Agent,
Any action related to this Agreement will be governed by California law and controlling U.S. Federal law. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Website shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California and to arbitration as stated herein. At the request of SWIMINISTA, any controversy or claim related to this Agreement ("Claim") may be resolved by arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this Agreement provides that it is governed by the laws of California. Arbitration proceedings will be determined in accordance with the Act, the rules and procedures for the arbitration of financial services disputes of JAMS/Endispute, LLC, a Delaware limited liability company or any successor thereof ("JAMS"), except that discovery in said arbitration shall be limited in scope to the specifics of liability on the Claim, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS rules and this paragraph, the terms of this paragraph shall control. The arbitration shall be administered by JAMS and conducted in Los Angeles, California. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars, upon the request of SWIMINISTA, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This paragraph does not limit the right of SWIMINISTA to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. In the event of any dispute (whether or not arbitrated), the prevailing party shall be entitled to reasonable costs and attorneys’ fees.
This Agreement represents the parties' entire understanding relating to the use of the Website and supersedes any prior or contemporaneous, conflicting or additional, communications. SWIMINISTA reserves the right to change these Terms or its policies relating to the Website at any time and from time to time, and such changes will be effective upon being posted herein. You should visit this page from time to time to review the then current Terms because they are binding on you. Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular pages of the Website, which may be posted from time to time. Your continued use of the Website after any such changes and/or postings shall constitute your consent to such changes. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between SWIMINISTA and you as a result of these Terms or use of the Website. You may not assign this Agreement without the prior written approval of SWIMINISTA. Any purported assignment in violation of this section shall be void. SWIMINISTA reserves the right to use Third Party Providers in the provision of the Website and/or the goods, service and/or Materials associated therewith. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any and all rights not expressly granted herein are reserved by SWIMINISTA.
INTELLECTUAL PROPERTY NOTICES
Elements of the Website are protected by copyright, trademark, trade dress and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from the Website may be copied or retransmitted unless expressly permitted by SWIMINISTA.
The SWIMINISTA; SEE THRU SOUL; SPEECHLESS; UNDERGROUND SOUL; SWIMINISTA and COREY P trademarks and/or other SWIMINISTA identifiers referenced herein are trademarks of SWIMINISTA and/or its affiliates, and may be registered in certain jurisdictions.
Copyright © 2010 Swat.Fame, Inc. All rights reserved.
LEGAL CONTACT INFORMATION
If you have any questions about these Terms, or if you would like to request permission to use any Materials, please contact our Customer Service Department.
TRY BEFORE BUY PROGRAM
In addition to our other ecommerce offering, SWIMINISTA is pleased to provide a try-before-buy service for certain products. The section below pertains to that service, offered by Lyon and Post, Inc, under the brand Post Commerce.
- 6a) Services and Membership Description: The Service is designed to offer people the opportunity to pick out their own clothes (“items”) and try them on before committing to purchase.SWIMINISTA will send up to 5 items at once (a “shipment”). Once you create an account, you will become a “member” of the try-on service. For more details about the Service, please see https://www.post-commerce.net/faq. With each shipment, you have seven (7) days after it is delivered to review the selection of items and try them on (“try-on period”). We charge you for all items not returned in accordance with the Return Policy, below, at the end of the try-on period, although we may bill you earlier in certain circumstances (for example, if you return item(s) from your shipment before the try-on period is over, if you request us to, if we have reason to believe that the order is fraudulent, if there has been a pattern of credit issues, or if we notify you that we will do so). There are no order minimums or long-term ordering commitments. You may suspend your Membership at any time by contacting SWIMINISTA customer support at email@example.com. SWIMINISTA reserves the rights to terminate your membership, to refuse any and all current or future use of the Site or the Service, and not to do business with any Member or anyone else, each as SWIMINISTA deems appropriate in its sole discretion for any reason.
- 6b) Return Policy; Shipping: You may return any item from your shipment you receive through the Service (in accordance with the instructions below and those provided with your shipment) within seven (7) days after it is delivered. For free returns, any items must be returned using either the pre-paid return label and box or the pre-labeled return bag provided by SWIMINISTA, and items must be unworn (other than “tried-on”), in their original condition and include all original tags and packaging. Shipping is not available to all locations. Members will not be charged fees for shipping or return shipping, except in special circumstances (where we will give you advance notice). All items you receive through the Service will be shipped by a third-party carrier.
- 6d) Prices, Fees and Billing: To receive a shipment, you will be required to provide Post Commerce with information regarding your credit card or other payment instrument. You represent and warrant to Post Commerce that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Post Commerce the charges incurred in accordance with this Terms of Service. You hereby authorize Post Commerce to bill your payment instrument in accordance with this Terms of Service until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Post Commerce know within thirty (30) days after the date that Post Commerce bills you. The current price for each item will appear on the packing list along with the shipment, when shipped to you. We may change the price we charge for a particular item (although the price of an item shipped to you will not change before the applicable try-on period is over). We reserve the right to institute fees for any portion of the Service, but if we do, we will provide notice of the change before your next shipment is shipped. Your continued use of the Service after the fee change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on SWIMINISTA’s net income (e.g., sales tax).SWIMINISTA reserves the right to institute a change in pricing for any portion of the Service. In cases of low purchase activity, the Service may offer an opt-in program that places a charge in exchange for credit on your account. This charge will be placed on your credit card before your order is shipped, and will automatically be applied as credit towards your next purchase.
- 6e) Unpaid Accounts: I understand if I have an unpaid balance to SWIMINISTA and do not make satisfactory payment arrangements, my account may be placed with an external collection agency. I will be responsible for reimbursement of any fees from the collection agency, including all costs and expenses incurred collecting my account, and possibly including reasonable attorney’s fees if so incurred during collection efforts. In order for SWIMINISTA or their designated external collection agency to service my account, and where not prohibited by applicable law, I agree that SWIMINISTA and the designated external collection agency are authorized to (i) contact me by telephone at the telephone number(s) I am providing, including wireless telephone numbers, which could result in charges to me, (ii) contact me by sending text messages (message and data rates may apply) or emails, using any email address I provide and (iii) methods of contact may include using pre-recorded/artificial voice message and/or use of an automatic dialing device, as applicable.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of womens contemporary denim.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in [SWIMINISTA, Ca] before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which [SWIMINISTA]’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.