Last updated: Jan 8th 2019
PLEASE READ THE FOLLOWING CAREFULLY BEFORE PURCHASING, DOWNLOADING, INSTALLING AND/OR USING THE SMART GARMENT AND/OR THE SOMAINNOFIT™ APP, WHICH IS CREATED, OPERATED AND MANAGED BY LIKEAGLOVE LTD ("LIKEAGLOVE", "WE", "OUR" OR "US") SOLELY FOR USE BY CHICO'S FAS, INC. AND ITS AFFILIATES (COLLECTIVELY, "CHICO'S").
3. Consent and Modification.
4. What Personal Information LikeAGlove Collects and How We Collect It.
LikeAGlove receives, collects and/or processes Personal Information from you in the following ways:
4.1 Account. In order to use certain services that LikeAGlove offers via the Services, you may be required to create an account ("Account"). If you create an Account you will be required to provide LikeAGlove with certain information, such as your name, email address, a password that you will use for your Account, your gender, the country in which you reside, your age, weight and height ("Account Information"). You may also choose to provide additional Personal Information as part of the Account registration process and in connection with your ongoing use of your Account. LikeAGlove may send you a text message to your mobile phone or an e-mail to the e-mail address you submit to confirm your registration. If you choose not to create an Account, you may not be able to access or use certain features of the Service or use the Services at all.
4.2 'Contact Us' Information. If you send LikeAGlove a "Contact Us" request, whether by submitting an online form that we make available or by sending an email to an email address that we display, you may be required to provide LikeAGlove with certain information such as your name and email address.
4.3 Share with Friends Service. The Services may enable you to invite your friends to use LikeAGlove's Services by sending them an invitation email or message. You may do so by: (i) using the Services to send or post an invitation message via an account you may have with a third party website or service, such as Facebook, Twitter, Instagram and/or Pinterest; and/or (ii) using the Services to send an invitation email to your friend's external email address (for example, a gmail address). If you send or post an invitation message using the tools we provide, LikeAGlove may collect Personal Information about the recipient such as their email address or their party website account user name and ID.
4.4 Location Data. We may provide certain location-based services ("Location Services") in connection with the App that are dependent on data related to the geographic location of your mobile device on which the App is installed ("Location Data"). If you choose to participate in these Location Services, you agree that we may collect or obtain your Location Data. You should be able to use the settings on your mobile device to turn off location-sharing features.
5. Other Information LikeAGlove Collects and How We Collect It.
5.1 Measurements. LikeAGlove uses the Smart Garment and App to take and collect your physical body measurements such as your cup, band and other physical aspects as specified in the App ("Measurements"). Such Measurements may also be stored on your device. LikeAGlove may also share Measurements with third parties, for example, retailers from whom you may wish to order clothing.
5.2 Location Data. We may provide certain location-based services ("Location Services") in connection with the App that are dependent on data related to the geographic location of your mobile device on which the App is installed ("Location Data"). If you choose to participate in these Location Services, you agree that we may collect or obtain your Location Data. You are able to change the settings on your mobile device to turn off location-sharing features.
5.3 Log Files. LikeAGlove may make use of log files. The information inside the log files includes internet protocol (IP) addresses, type of browser, Internet Service Provider (ISP), date/time stamp, referring/exit pages, clicked pages and any other information your browser may send to us. LikeAGlove may use such information to analyze trends, administer the Services, track user's movement around the Services, and gather demographic information.
5.4 Clear GIFs. LikeAGlove may use "clear GIFs" (a.k.a. "web beacons" or "pixel tags") or similar technologies in the Services and in LikeAGlove's communications with you to enable us to know whether you have visited a web page or received a message. A clear GIF is typically a one-pixel, transparent image (although it can be a visible image as well), located on a web page or in an e-mail or other type of message, which is retrieved from a remote site on the internet enabling the verification of an individual's viewing or receipt of a web page or message.
5.5 Cookies and Other Tracking Technologies. LikeAGlove's Services may utilize "cookies", anonymous identifiers and other tracking technologies in order for us to provide our Services and present you with information that is customized for you. A "cookie" is a small text file that may be used, for example, to collect information about activity on the Services. Certain cookies and other technologies may serve to recall Personal Information, such as an IP address, previously indicated by a user. Most browsers allow you to control cookies, including whether or not to accept them and how to remove them. You may set most browsers to notify you if you receive a cookie, or you may choose to block cookies with your browser.
5.6 Mobile Device Data. LikeAGlove may collect limited information from your mobile device in order to provide the Services. Such information may include your mobile device type, mobile device id, and date and time stamps of App use. In addition, LikeAGlove may deploy tracking technologies within the Services to help us gather aggregate statistics, but we will not use Personal Information for such purposes.
6. The Way LikeAGlove Uses Personal Information.
If you submit or LikeAGlove collects Personal Information through the Services, then, in addition to the uses specified above, we may use such Personal Information in the following ways, via any applicable communication channel, including e-mail, SMS, etc.:
6.1 LikeAGlove will use your Personal Information to provide and improve our Services, to send you marketing/advertisement communications that we believe may be of interest to you, to contact you in connection with the Services and certain programs or offerings that you may have registered for, and to identify and authenticate your access to the parts of the Services that you are authorized to access.
6.2 LikeAGlove may use your designated email address to: (i) send you updates or news regarding the Services and our products or Chico's products; and/or (ii) respond to a "Contact Us" or administrative request (for example, to change your password).
6.3 If you choose to send your friend an invitation email or message LikeAGlove will use the contact information that you provide, or make available, to automatically send your friend an invitation email or message. Your name and email address may be included in the invitation email or message.
6.6 LikeAGlove may disclose your Personal Information or any information you submitted via the Services if we have a good faith belief that disclosure of such information is helpful or reasonably necessary to: (i) comply with any applicable law, regulation, legal process or governmental request; (ii) enforce our Terms, including investigations of potential violations thereof; (iii) detect, prevent, or otherwise address fraud or security issues; or (iv) protect against harm to the rights, property or safety of LikeaGlove, our users, yourself or the public.
7. Use of Anonymous Information.
LikeAGlove may use Anonymous Information (as defined below) or disclose it to third party service providers in order to improve our Services and enhance your experience with the Services. We may also disclose Anonymous Information (with or without compensation) to third parties, including advertisers and partners. "Anonymous Information" means information which does not enable identification of an individual user, such as aggregated information about the use of our Services.
8. Opting Out.
You may choose not to receive future promotional, advertising, or other Services-related emails from LikeAGlove by selecting an unsubscribe link at the bottom of each email that we send. Please note that even if you opt-out of receiving the foregoing emails, LikeAGlove may still send you a response to any "Contact Us" request as well as administrative emails (for example, in connection with a password reset request) that are necessary to facilitate your use of the Services.
At all times, you may choose whether or not to provide or disclose Personal Information. If you choose not to provide mandatory Personal Information, you may still visit parts of the Services but you may be unable to access certain options, programs, offers, and services that involve LikeAGlove's interaction with you.
To the extent that you do provide LikeAGlove with Personal Information, we wish to maintain accurate Personal Information. If you would like to delete or correct any of your Personal Information that we may be storing, you may submit an access request by using the tools that we make available on the Services or by sending an email to email@example.com. Your email should include adequate details of your request.
11. Links to and Interaction with Third Party Products.
12. Children's Privacy.
The Services are not structured to attract children under the age of 13 years. Accordingly, LikeAGlove does not intend to collect Personal Information from anyone we know to be under 13 years. If we learn that we have collected Personal Information from a child under 13 years, we will delete that information as quickly as possible. If you believe that we might have any such information, please contact us at firstname.lastname@example.org.
The security of Personal Information is important to us. We follow generally accepted industry standards, including the use of appropriate administrative, physical and technical safeguards, to protect the Personal Information submitted to us. However, no method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, while we strive to use reasonable acceptable means to protect your Personal Information, we cannot guarantee its absolute security or confidentiality. If you have any questions about security on the Service, you can contact us at email@example.com.
14. Merger, Sale or Bankruptcy.
In the event that LikeAGlove is acquired by or merged with a third party entity, or in the event of bankruptcy or a comparable event, we reserve the right to transfer or assign Personal Information in connection with the foregoing events.
15. California Privacy Rights.
We may from time to time elect to share certain information about you collected by us on the Site with third parties for those third parties' direct marketing purposes. California Civil Code Section 1798.83 permits California residents who have supplied personal data, as defined in the statute, to us, under certain circumstances, to request and obtain certain information regarding our disclosure, if any, of personal data to third parties for their direct marketing purposes. If this applies, you may obtain the categories of personal data shared and the names and addresses of all third parties that received personal data for their direct marketing purposes during the immediately prior calendar year (e.g., requests made in 2018 will receive information about 2017 sharing activities). To make such a request, please provide sufficient information for us to determine if this applies to you, attest to the fact that you are a California resident and provide a current California address for our response. To make such a request (limit one request per year), please submit a written request to firstname.lastname@example.org. You must include your full name, email address, and postal address in your request.
16. Our California / Delaware Do Not Track Notice.
Various third parties are developing or have developed signals or other mechanisms for the expression of consumer choice regarding the collection of information about an individual consumer's online activities over time and across third-party websites or online services (e.g., browser do not track signals). Currently, we do not monitor or take any action with respect to these signals or other mechanisms.
17. Deletion of Content from California Residents.
If you are a California resident under the age of 18 and a registered user, California Business and Professions Code Section 22581 permits you to remove content or Personal Information you have publicly posted. If you wish to remove such content or Personal Information and you specify which content or Personal Information you wish to be removed, we will do so in accordance with applicable law. Please be aware that after removal you will not be able to restore removed content. In addition, such removal does not ensure complete or comprehensive removal of the content or Personal Information you have posted and that there may be circumstances in which the law does not require us to enable removal of content.
SOMAINNOFIT™ Smart Garment & App Terms and Conditions
Effective Date: Jan 8th 2019
PLEASE READ THE FOLLOWING CAREFULLY BEFORE PURCHASING, DOWNLOADING, INSTALLING AND/OR USING THE SMART GARMENT AND/OR THE SOMAINNOFIT™ APP, WHICH IS CREATED, OPERATED AND MANAGED BY LIKEAGLOVE LTD ("LIKEAGLOVE") SOLELY FOR USE BY CUSTOMERS OF CHICO'S FAS, INC. AND ITS AFFILIATES ( COLLECTIVELY, "CHICO'S"). THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH LIKEAGLOVE AND CHICO'S AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST BOTH LIKEAGLOVE AND CHICO'S IN A CLASS ACTION FORMAT.
By using the SOMAINNOFIT™ electronic smart garment from likeaglove ("Smart Garment"), OR BY clicking the "accept" or "ok" button, or installing and/or using the SOMAINNOFIT™ software application from likeaglove (the "App", the Smart Garment and the App together WITH ANY OTHER PROVIDED SOFTWARE, ACCESSORIES OR COMPONENTS, UNLESS OTHERWISE SPECIFIED, the "Product"), you expressly acknowledge and agree that you are entering into a legal agreement with LikeAGlove, and have understood and agree to comply with, and be legally bound by, these terms and conditions ("Agreement"). CHICO's is not responsible for the administration, OPERATION or execution of the PRODUCT; provided, however, CHICO's is intended to be a THIRD PARTY beneficiary of THIS AGREEMENT as the PRODUCT's SOLE sponsor. The use in THIS AGREEMENT of the term "LIKEAGLOVE" shall be deemed to also include CHICO's TO THE EXTENT CHICO's WISHES TO ENFORCE THIS AGREEMENT AGAINST YOU OR OBTAIN ANY OF THE RIGHTS AND BENEFITS GRANTED BY YOU AND YOUR OTHER OBLIGATIONS HEREUNDER. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not purchase, install, download, wear and/or use the Product or any component thereof.
FOR SAKE OF CLARITY, THIS AGREEMENT APPLIES TO USE OF THE SMART GARMENT AND APP ONLY, NOTWITHSTANDING THE FOREGOING, any PURCHASES that you make FROM CHICO'S WEBSITES AND EXTERNAL PLATFORMS SHALL BE GOVERNED BY THE TERMS AND CONDITIONS AVAILABLE through THOSE SITES AND PLATFORMS.
IF YOU DOWNLOAD THE APP WITHOUT PURCHASING OR USING THE REST OF THE PRODUCt, THEN REFERENCES IN THIS AGREEMENT TO THE REST OF THE PRODUCT, INCLUDING, WITHOUT LIMITATION, THE SMART GARMENT, SHALL NOT APPLY TO YOU AND REFERENCES TO THE PRODUCT SHALL ONLY APPLY, AS APPLICABLE TO THE APP.
If you do not purchase the Product directly from LikeAGlove OR CHICO'S, but from a THIRD PARTY authorized reseller or retailer of the Product ("Retailer"), no terms agreed to by such Retailer which contradict, differ or are in addition to the terms of this Agreement shall be binding on LikeAGlove.
1. Ability to Accept. The Product is not intended for children under the age of thirteen (13). By purchasing, downloading, installing, wearing and/or using the Product you affirm that you are over thirteen (13) years of age. If you are between the age of thirteen (13) and eighteen (18) years then, you must first review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand its terms and conditions and agree to them.
2. App License. Subject to the terms and conditions of this Agreement, LikeAGlove hereby grants you a personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable license ("License") to: (i) download, install and use the App on a mobile telephone, tablet or other device (each a "Device") that you own or control and for which the App is compatible; (ii) access and use the App on that Device in accordance with this Agreement and any applicable Usage Rules (defined below); (iii) use software provided with or contained on the Smart Garment solely in the manner provided, as part of the Smart Garment unit purchased by you.
3. Restrictions. You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, sell, lease, lend or rent the Product; (ii) make the App or any other software provided (the App together with such software, the "Software") available over a network where it could be used by multiple devices owned or operated by different people at the same time; (iii) tamper with, modify, reverse engineer or disassemble the Smart Garment or any portion thereof, or disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of, the Software; (iv) copy (except for back-up purposes), modify, improve, or create derivative works of the Software or any part thereof, or any Documentation; (v) circumvent, disable or otherwise interfere with security-related features of the Software or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Software; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in, or displayed on or via the Product; (vii) use any communications systems provided by the Product to send unauthorized and/or unsolicited commercial communications; (viii) use the LikeAGlove name, logo or trademarks without LikeAGlove's prior written consent; and/or (ix) use the Product to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement. "Documentation" means user manuals that are delivered with the Product which describe the features, functionality and proper use of the Product. Documentation does not include marketing materials.
4. Account. In order to use some of the Product's features you may have to create or use an account (an "Account"). If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for this or for any other reason in LikeAGlove's sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your Account, password, and username - whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Product using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your Account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your Account or any Account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates this Agreement, or any applicable law, then we may suspend or terminate your Account. We also reserve the more general and broad right to terminate your Account or suspend or otherwise deny you access to it or its benefits - all in our sole discretion, for any reason, and without advance notice or liability. If you would like to deactivate or close your Account, please email: email@example.com.
5. App Usage Rules. If you are downloading or have downloaded the App from a third party mobile device platform or service provider ("Distributor"), such as for example, Apple iTunes, please be aware that the Distributor may have established usage rules which also govern your use of the App ("Usage Rules"). LikeAGlove specifically refers to the Usage Rules of certain Distributors below in the section below entitled 'Distributor Requirements and Usage Rules', but other Usage Rules may be applicable depending on where the App has been downloaded from. You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the App are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App; if you are unable to make such a representation you are prohibited from installing and/or using the App.
6. Use of the Product in a Vehicle. If you are using the Product in a vehicle, you agree: (i) to comply with all applicable traffic laws; and (ii) if you are the driver, not to use the Product unless your vehicle is stationary and legally parked.
7. Intellectual Property Rights.
7.1. Ownership. You acknowledge that while you may be purchasing or otherwise using the Product, the Software included in the Product is licensed and not sold to you. LikeAGlove and its licensors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to the Product, and LikeAGlove reserves all rights not expressly granted herein. "Intellectual Property Rights" means any and all rights in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
7.2. Content. The content on or in the Product, including, without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (the "Materials"), and the trademarks, service marks and logos contained and displayed on the Product ("Marks"), and together with the Materials and feedback and other information provided by you (the "User Submissions", and together the "Content"), is the property of LikeAGlove and/or its licensors, including Chico's, and may be protected by applicable copyright or other intellectual property laws and treaties. "LikeAGlove" and the LikeAGlove logo are Marks of LikeAGlove and its affiliates. "Soma", "Chico's", "SOMAINNOFIT" word marks and logos are Marks of Chico's and its affiliates and are used under license by LikeAGlove. All other Marks used on the Product are the trademarks, service marks, or logos of their respective owners.
7.3. Use of Content. The content on or in the Product is provided to you "as is" for your personal use only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without LikeAGlove's prior written consent. If you download or print a copy of the content (which you may do for personal purposes only) you must retain all copyright and other proprietary notices contained therein.
8.1. LikeAGlove may in the future charge a fee for certain features and/or uses of the Product or in-app purchases. You will not be charged for any such uses of the Product unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the Product.
8.2. Please be aware that your use of the Product may require and utilize internet connection or data access. To the extent that third party service provider or carrier charges for your internet or data usage are applicable, you agree to be solely responsible for those charges.
9. Third Party Sources and Content.
9.1. The App may enable you to view, access, link to, and use content from Third Party Sources (defined below) that are not owned or controlled by LikeAGlove ("Third Party Content"). The App may also enable you to communicate and interact with Third Party Sources. "Third Party Source(s)" means: (i) third party websites and services; and (ii) LikeAGlove's partners and customers.
9.3. LikeAGlove is not responsible for, and LikeAGlove expressly disclaims all warranties regarding, the accuracy, appropriateness, usefulness, safety, or Intellectual Property Rights (defined below) of, or relating to, any Third Party Content.
9.4. LikeAGlove does not endorse any advertising, promotions, campaigns, products, services or other materials that is included in any Third Party Content or that is communicated to you from a Third Party Source.
9.5. By using the App you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or objectionable. You always have the choice of whether or not to interact with a Third Party Source or to view and use Third Party Content. Your interaction with a Third Party Source and your use of, and reliance upon, any Third Party Content is at your sole discretion and risk.
9.6. You are solely responsible and liable for your interaction with a Third Party Source. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against LikeAGlove, and release LikeAGlove from any and all liability, arising from your use of and interaction on any Third Party Content and from your interaction with any Third Party Source. If you have any query or complaint regarding a Third Party Source or any Third Party Content, you agree to contact the Third Party Source directly.
11. Limited Warranty and Warranty Disclaimers.
11.1. Smart Garments. To the extent you purchase the Product directly from LikeAGlove or Chico's, during the initial ninety (90) day period commencing on the date that you purchase the Product, as evidenced by the Product's original sales receipt, LikeAGlove warrants to you, subject to the terms and conditions of this Section 11, that the Smart Garment will be free from defects in materials and workmanship and will substantially comply with the applicable specifications set out in the Documentation ("Hardware Warranty").
11.2. Software. During the initial ninety (90) day period commencing on the date that you purchase the Product, as evidenced by the Product's original sales receipt, LikeAGlove warrants to you, subject to the terms and conditions of this Section 11, that the Software will substantially comply with the applicable specifications set out in the Documentation ("Software Warranty") (The Hardware Warranty and Software Warranty, as applicable, collectively, the "Product Warranty").
11.3. Smart Garment. In the event you notify LikeAGlove or the Retailer from which you purchased the Product in writing within the applicable Product Warranty period as specified above (the "Warranty Period"), of a warranty claim LikeAGlove will (a) in LikeAGlove's sole discretion: (i) in the case of the Smart Garment, repair or replace the defective component(s) with new or refurbished part(s) or (ii) replace the entire Smart Garment device; or (b) in the case of the Software, make commercially reasonable efforts to provide a fix, patch or workaround, which may be included in a future App release, all at no additional charge to you. Any repairs, fixes, or replacement parts provided as part of the foregoing warranty service are warranted for the remainder of the applicable Warranty Period, as then in effect.
In order to receive the warranty service described in this Section 11.3, you may be required to, and you agree to, (i) deliver the malfunctioning Product to LikeAGlove or the Retailer from which you purchased the Product; (ii) provide to LikeAGlove or the Retailer (a) a written description of the problem, (b) the original sales receipt for the Product, or (c) your contact information, including your name, phone number, e-mail address or mailing address; or (iii) pay for shipping and handling costs in connection with the delivery of the defective Product to LikeAGlove or the Retailer and delivery of the replacement Product or component to you.
11.4. Warranty Service Exclusions. Warranty services described above exclude, and LikeAGlove shall not have any responsibility hereunder to support, any and all of the following: (a) Products that have been altered, modified, or (in the case of the Smart Garment) opened or disassembled by you or any third party other than LikeAGlove's authorized personnel; (b) software that has been incorporated or bundled with other software or hardware not provided by LikeAGlove; (c) use of the Product in conjunction with any other accessory or power source not provided by LikeAGlove; (d) Problems not caused by a Product defect; (e) damage to the Smart Garment caused by normal wear and tear, by your negligence, abuse or use other than as specified in the Documentation, by natural disasters, acts of God (such as but not limited to, lightening, flooding, tornado, earthquakes and hurricanes), or other factors beyond LikeAGlove's control; (f) software problems not reproducible by LikeAGlove; (g) any action or service not specifically mentioned in Section 11.3 above; and (h) any problem arising from one of the prohibited actions set forth in Section 3 (Restrictions) above.
11.5. WARRANTY DISCLAIMERS. Except as expressly stated in this Section 11:
11.5.1. THE SMART GARMENT AND APP ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
11.5.2. LIKEAGLOVE DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE ERROR-FREE, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL CODE or that LIKEAGLOVE will correct any errors in the PRODUCT. YOU AGREE THAT LIKEAGLOVE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES, TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING, WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF LIKEAGLOVE'S OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
11.5.3. WHILE LIKEAGLOVE INTENDS FOR THE MEASUREMENTS TAKEN AND THE CLOTHING SIZES, FIT, BRANDS, STYLES, LINE OR ARTICLES OF CLOTHING OR ACCESSORIES OR OTHER SUGGESTIONS OFFERED BY THE PRODUCT TO BE AS ACCURATE AND AS HELPFUL AS POSSIBLE, LIKEAGLOVE DOES NOT WARRANT THAT THE MEASUREMENTS OR SUGGESTIONS MADE OR REPORTED TO YOU BY THE PRODUCT WILL BE ACCURATE, APPROPRIATE OR ACCEPTABLE TO YOU.
11.5.4. THE SMART GARMENT IS POWERED BY A 3V COIN CELL BATTERY, IT USES CONDUCTIVE FIBERS AND LOW VOLTAGE (3V), LOW FREQUENCY PULSES TO TAKE YOUR MEASUREMENTS AND TRANSMIT SUCH INFORMATION VIA BLUETOOTH TO THE APP ON YOUR DEVICE. WHILE LIKEAGLOVE DOES NOT BELIEVE SUCH AMOUNTS OF ELECTROMAGNETIC SIGNALS POSE ANY DANGER TO YOUR HEALTH, LIKEAGLOVE DOES NOT WARRANT THAT THE SMART GARMENT IS SAFE FOR YOU. USE only batteries, chargers (or other power SOURCES) and accessories provided with the Product or as specified in the Documentation as the use of other types could be dangerous. IF YOU HAVE ANY PHYSICAL AILMENTS, MEDICAL CONDITIONS, OR USE ELECTRONIC DEVICES FOR MEDICAL REASONS, CONSULT YOUR DOCTOR BEFORE USING OF THE PRODUCT. THIS PRODUCT IS NOT SAFE FOR USE DURING PREGNANCY OR BY OR ON INFANTS OR CHILDREN UNDER 13.
11.5.5. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
12. Dispute Resolution
12.1. First - Try To Resolve Disputes And Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Product, the Content, your User Submissions ,this Agreement, whether heretofore or hereafter arising (collectively, "Dispute"), or to any of LikeAGlove's actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section 12(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 12(A). To provide us notice of an arbitration demand, send the demand to: firstname.lastname@example.org. For a period of sixty (60) days from the date of receipt of notice from the other party, LikeAGlove and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or LikeAGlove to resolve the Dispute or Excluded Dispute on terms with respect to which you and LikeAGlove, in each of our sole discretion, are not comfortable.
12.2. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 12(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND LIKEAGLOVE MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT - INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY - AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT). Place of arbitration shall be New York City, New York. The Federal Arbitration Act ("FAA") shall govern the arbitrability of all disputes between LikeAGlove and you regarding this Agreement (and any additional terms) and the Product, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.
12.3. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. The arbitration will be conducted by JAMS, Inc. under its rules by a single arbitrator experienced in commercial disputes. The JAMS' rules are available at www.jamsadr.com or by calling 1-800-352-5267. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitrator shall issue a written award setting forth the arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it. The arbitrator's award may be entered in any court of competent jurisdiction. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS' rules. This arbitration provision shall survive termination of this Agreement or the Agreement.
12.4. Limited Time To File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED. Commencing means, as applicable (a) by delivery of written notice as set forth above in Section 12(A); (b) filing for arbitration with the AAA as set forth in Section 12(B); or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
12.5. Injunctive Relief. The foregoing provisions of this Section 12 will not apply to any legal action taken by LikeAGlove to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Product, any Content, your User Submissions and/or LikeAGlove's intellectual property rights (including such LikeAGlove may claim that may be in dispute), LikeAGlove's operations, and/or LikeAGlove's products or services.
12.6. No Class Action Matters. YOU AND LikeAGlove AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 12(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 12(F). Notwithstanding any other provision of this Section 12, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this "No Class Action Matters" section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
12.7. Federal And State Courts In New York City, New York. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in the small claims courts in New York City, New York. Accordingly, you and LikeAGlove consent to the exclusive personal jurisdiction and venue of such courts for such matters.
12.8. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction. Notwithstanding any other provision in the Agreement to the contrary, to the extent LikeAGlove makes a material change to this dispute resolution provision, such change will not apply to any dispute that you provided LikeAGlove notice of prior to the change in the dispute resolution provision.
13. Limitation of Liability.
13.1. UNDER NO CIRCUMSTANCES SHALL LIKEAGLOVE BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE PRODUCT EVEN IF LIKEAGLOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. IN ANY EVENT, LIKEAGLOVE'S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE PRODUCT, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY YOU FOR THE SMART GARMENT OR THE LICENSE TO THE APP TO LIKEAGLOVE OR ITS AFFILIATES OR THE RETAILER.
14. Indemnity. You agree to defend, indemnify and hold harmless LikeAGlove, LikeAGlove's affiliates and business partners, and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, but not limited to, attorney's fees) arising from: (i) your use of, or inability to use, the Product; (ii) your User Submissions; (iii) your violation or alleged violation of this Agreement; (iv) your violation of any third party right, including, without limitation, any copyright, property, or privacy right; (v) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Product or your activities in connection with the Product; (vi) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vii) any misrepresentation made by you; or (viii) LikeAGlove's or Chico's use of the information that you submit to us (including your User Submissions). Without derogating from or excusing your obligations under this section, LikeAGlove reserves the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining LikeAGlove's express approval.
15. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the Product nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
16. Updates and Upgrades. LikeAGlove may from time to time provide updates or upgrades to the App (each a "Revision"), but are not under any obligation to do so. (LikeAGlove does not provide free updates or upgrades to the Smart Garment or other portions of the Product). App Revisions, if supplied at all, will be supplied according to LikeAGlove's then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the App. All references herein to the App shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original App, unless the Revision is accompanied by a separate license agreement which will govern the Revision.
17. Third Party Software. Portions of the Product may include third party open source software that are subject to third party terms and conditions ("Third Party Terms"). A list of any third party open source software and related Third Party Terms is available at www.likeaglove.me. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open source software. Notwithstanding anything in this Agreement to the contrary, LikeAGlove makes no warranty or indemnity hereunder with respect to any third party open source software.
18. Term and Termination.
18.1. Term and Termination. This Agreement is effective until terminated by LikeAGlove or you. LikeAGlove reserves the right, at any time, to: (i) discontinue or modify any aspect of the Product; and/or (ii) immediately terminate this Agreement and your use of the App due to your breach of this Agreement, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the Product in any way, your only recourse is to immediately discontinue use of the Product.
18.2. Effect of Termination . Upon termination of this Agreement, you shall cease all use of the App. This Section 18.2 and Sections 3 ( Restrictions), 7 (Intellectual Property Rights), 10 (Privacy), 11 (Limited Warranty and Warranty Disclaimers), 13 (Limitation of Liability ), 14 (Indemnity), 17 (Third Party Software) and 19 (Assignment), 20 (Modification), 21 ( Governing Law), and 22 (General) shall survive termination of this Agreement.
19. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by LikeAGlove without restriction or notification.
20. Modification. Except for the limited warranty set forth in Section 11, LikeAGlove reserves the right to modify this Agreement at any time by sending you an in-app notification and/or publishing the revised Agreement on the App. Such change will be effective ten (10) days following the foregoing notification thereof, and your continued use of the Product thereafter means that you accept those changes.
21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel without regard to its conflict of laws rules.
22. General. This Agreement, any Product order form provided by LikeAGlove, and any other legal notices published by LikeAGlove in connection with Product, shall constitute the entire agreement between you and LikeAGlove concerning the Product. In the event of a conflict between this Agreement and any such legal notices, the terms of the applicable notice shall prevail with respect to the subject matter of such notice. No amendment to this Agreement will be binding unless in writing and signed by LikeAGlove. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. All section and sub-section headings used in this Agreement are for convenience only, and shall not be relied upon or used in interpreting this Agreement. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE PRODUCT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
23. Investigations; Cooperation with Law Enforcement; Termination; Survival. LikeAGlove reserves the right, without any limitation, to: (i) investigate any suspected breaches of the Product's security or its information technology or other systems or networks, (ii) investigate any suspected breaches of this Agreement, (iii) investigate any information obtained by LikeAGlove in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of this Agreement, and (vi) discontinue the Product, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to LikeAGlove under this Agreement. Upon suspension or termination of your access to the Product, or upon notice from LikeAGlove, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Product. The provisions of this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to LikeAGlove in this Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
24. California Consumer Rights and Notices. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
25. Distributor Requirements and Usage Rules.
25.1. Apple. If you download the App from the Apple, Inc. ("Apple") App Store (or in any event if you download an Apple iOS App) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:
(i) You acknowledge and agree that:
(a) this Agreement is concluded between LikeAGlove and you only, and not with Apple, and LikeAGlove and its licensors, and not Apple, are solely responsible for the App and the content thereof.
(b) your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
(c) the License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
(d) LikeAGlove is solely responsible for providing any maintenance and support services with respect to the App, as specified in this Agreement, or as required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
(e) LikeAGlove is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be LikeAGlove's sole responsibility;
(f) LikeAGlove, and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation;
(g) in the event of any third party claim that the App or your possession and use of the App infringes that third party's intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
(h) Apple, and its subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
(ii) You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
(iii) If you have any questions, complaints, or claims regarding the App, please contact LikeAGlove at email: email@example.com.
(iv) By entering into this Agreement you, to the extent legally permitted, hereby waive any applicable law requiring that this Agreement be localized to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed Application End User License Agreement which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).