MySureFit, Inc. ("MySureFit" or "we") provides a platform where users can share their look with a community through our website, accessible at mysurefit.co (the "Site") and as an application (the "App") (collectively, the "Services"). Please read carefully the following terms and conditions ("Terms") and our Privacy Policy [which is incorporated by reference into these Terms] because they form a legal agreement between you and MySureFit, for use of the Services. By using any or all of the Services you are agreeing to be bound by these Terms.
MODIFICATION
We reserve the right to modify or terminate the Services or to modify these Terms, at any time and without prior notice.
ELIGIBILITY
You must be 13 years of age or older to use MySureFit. We reserve the right to refuse service to anyone for any reason at any time.
ACCOUNT REGISTRATION
In order to access certain features of Services and to post any Content (defined below) on or through the Services you must register to create a MySureFit account. You may only create one account (your own) and it may only be used for personal purposes.
You may register directly via the Site or App or by logging into your account with certain third party social media or social networking sites ("SNS") (including, but not limited to, Facebook) via the Site or App, as described herein. If you decide to register through an SNS, we will extract the personal information you have provided to the SNS (such as your "real" name, email address and other information you make publicly available via the SNS) from the account you have with the applicable SNS and use that information to create your account. The specific information that we extract may depend on the privacy settings you have with the SNS. You consent to our access to and collection of such personal information about you.
During the registration process, you will establish a username and a password. You agree that you won’t select a user name that is the name of another person or entity with the intention of impersonating that person or entity or of causing confusion about your account. You agree to provide accurate, current and complete information during the registration process and to keep such information up to date such information to keep it accurate, current and complete, and if you don’t we reserve the right to suspend or terminate your account.
CONTACT
By registering with us you agree to let us send you updates (such as when there is an update to your account) and news by email or push notification, depending on your preferences. To stop getting these notifications please click the "unsubscribe" link from the last email that was sent to you or update your preferences under the "My Account" section on the website.
ACCEPTABLE USE POLICY
We grant you the right to use the Services, and the corresponding functionality, solely in accordance with these Terms.
You are solely responsible for your conduct and any Content that you submit, post, and display on or through the Services.
You are responsible for safeguarding your password.
You are responsible for any activities or actions under your account (including under your screen name), whether or not you have authorized such activities or actions. You will immediately notify MySureFit of any unauthorized use of your account.
You agree not to post, upload, publish, submit or transmit any Content that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
You also agree not to (i) post nude, partially nude, or sexually suggestive images or other Content; (ii) abuse, harass, threaten, intimidate, impersonate, or misrepresent your affiliation with other MySureFit users or third parties; or (iii) use the Services for any illegal or unauthorized purpose.
You must not modify, adapt or hack MySureFit or modify another website or application so as to falsely imply that it is associated with MySureFit.
You must not access, tamper with, or use non-public areas of the Site or App, MySureFit’s computer systems, or the technical delivery systems of MySureFit’s providers.
You must not attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, App or Content.
You must not crawl, scrape, or otherwise cache, collect or store any content from MySureFit including but not limited to Content or personally identifiable information, including user profiles and images.
You must not attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by MySureFit or other generally available third party web browsers.
You agree not to use, display, mirror or frame the Site or App, or any individual element within the Services, MySureFit’s name, any MySureFit trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without MySureFit’s express written consent.
You must not send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation or create or submit any unwanted or inappropriate comments.
You must not interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, by transmitting any worms or viruses or any code of a destructive nature, or overloading, flooding, spamming, or mail-bombing the Services.
You must not encourage or enable any other individual to do any of the foregoing.
If you breach any of these Terms, we may suspend or disable or terminate your account, at our sole discretion and without prior notice to you. We may, but have no obligation to, remove or disable access to any Content or accounts that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any party’s intellectual property or privacy rights or violate these Terms.
MySureFit respects copyright laws and expects its users to do the same. It is MySureFit’s policy to terminate inappropriate circumstances subscribers or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see MySureFit’s Privacy and IP Policy at: https://www.mysurefit.co/privacy-policy/, for further information.
We reserve the right to prohibit, reclaim or reassign any user name that becomes inactive, violates a third party’s trademark or other intellectual property or privacy rights, or may mislead other users.
While MySureFit prohibits certain conduct and Content on the Services, you understand and agree that MySureFit cannot be responsible for the conduct of persons while using the Services or the Content posted on or through the Services and you nonetheless may be exposed to such materials and that you use the Services at your own risk.
PROPRIETARY RIGHTS IN CONTENT
Our Services will allow you and other users to post, link, share and make available certain information, recommendations, comments, images, and other supported content ("Content"). MySureFit does NOT claim ANY ownership rights in the Content that you post on or through the Services. You are responsible for the Content that you post to the Services, including its legality, reliability, and appropriateness. By posting Content to the Services, you grant us the non-exclusive, royalty free, right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Services in any media formats through any media channels. You agree that this license includes the right for us to make your Content available to other users of the Services, who may also use your Content subject to these Terms. You acknowledge that MySureFit performs technical functions necessary to offer the Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the Services.
Some of the Services are supported by advertising revenue and may display advertisements and promotions, and you agree that MySureFit may place such advertising and promotions on the Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
You represent and warrant that: (i) you own the Content or otherwise have the right to grant the license to MySureFit set forth in these Terms, (ii) the posting and use of your Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content does not result in a breach of contract between you and a third party.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by MySureFit or its licensors, except for the licenses and rights expressly granted in these Terms.
MySureFit reserves the right to delete any Content for any reason, without prior notice. Consequently, MySureFit encourages you to maintain your own backup of your Content. You agree that MySureFit is not a backup service and MySureFit will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any Content.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services ("Feedback"). You may submit Feedback by emailing us at care@mysurefit.co. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
APP LICENSE
Subject to your compliance with these Terms, MySureFit grants you a limited non-exclusive, non-transferable license to download and install a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store ("App Store Sourced App"), you will use the App Store Sourced App only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. MySureFit reserves all rights in and to the App not expressly granted to you under these Terms.
ACCESSING AND DOWNLOADING THE APP FROM ITUNES & GOOGLE PLAY STORE
The following applies to any App Store Sourced App:
You acknowledge and agree that (i) these Terms are concluded between you and MySureFit only,
and not Apple or Google, and (ii) MySureFit, not Apple or Google, is solely responsible for
the App Store Sourced App and content thereof. Your use of the App Store Sourced App must
comply with the App Store Terms of Service.
You acknowledge that Apple or Google has no
obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App.
In the event of any failure of the App Store Sourced App to conform to any applicable warranty,
you may notify Apple or Google, and Apple or Google will refund the purchase price for the App Store Sourced
App to you and to the maximum extent permitted by applicable law, Apple or Google will have
no other warranty obligation whatsoever with respect to the App Store Sourced App. As between MySureFit,
Apple or Google, any other claims, losses, liabilities, damages, costs or expenses attributable to any
failure to conform to any warranty will be the sole responsibility of MySureFit.
You and MySureFit acknowledge
that, as between MySureFit, Apple and Google, Apple and Google are not responsible for addressing any claims
you have or any claims of any third-party relating to the App Store Sourced App or your possession and use of
the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that
the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims
arising under consumer protection or similar legislation.
You and MySureFit acknowledge that, in the event of any third party claim that the App Store Sourced App or your possession and use of that App
Store Sourced App infringes that third party’s intellectual property rights, as between MySureFit,
Apple or Google, MySureFit, not Apple or Google, will be solely responsible for the investigation,
defense, settlement and discharge of any such intellectual property infringement claim to the extent
required by these Terms.
You and MySureFit acknowledge and agree that Apple or Google, and their
subsidiaries, are third party beneficiaries of these Terms as related to your license
of the App Store Sourced App, and that, upon your acceptance of the terms and conditions
of these Terms, Apple or Google will have the right (and will be deemed to have accepted
the right) to enforce these Terms as related to your license of the App Store Sourced App
against you as a third party beneficiary thereof.
Without limiting any other terms of these
Terms, you must comply with all applicable third-party terms of agreement when using
the App Store Sourced App.
LINKS
The Services may contain links to third-party websites or resources. You acknowledge and agree that MySureFit is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by MySureFit of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.
DISCLAIMERS
THE SERVICES AND CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, MySureFit EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MySureFit MAKES NO WARRANTY THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS AND MAKES NO WARRANTY REGARDING THE QUALITY OF THE SERVICES OR CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MySureFit OR THROUGH THE SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT MySureFit DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICES, NOR DOES MySureFit MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. MySureFit MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND CONTENT REMAINS WITH YOU. NEITHER MySureFit NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MySureFit HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL MySureFit’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED FIFTY DOLLARS ($50). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MySureFit AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
CONTROLLING LAW
These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
EXPORT CONTROL
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the App Store Sourced App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced App, you represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
DISPUTE RESOLUTION
You and MySureFit agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Southern District of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and MySureFit are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and MySureFit otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_0.pdf and a additional form for California residents at https://www.adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and MySureFit otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and MySureFit submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. MySureFit will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, MySureFit will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if MySureFit changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to care@mysurefit.co) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of MySureFit’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and MySureFit in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
GENERAL
All trademarks, service marks, logos, trade names and any other proprietary designations of MySureFit used herein are trademarks or registered trademarks of MySureFit. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties. The failure of MySureFit to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. These Terms constitute the entire and exclusive understanding and agreement between MySureFit and you regarding the Services and Content. You may not assign or transfer these Terms, by operation of law or otherwise, without MySureFit’s prior written consent. MySureFit may freely assign or transfer these Terms. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be given by MySureFit (i) via email (in each case to the address that you provide); or (ii) by posting to the Site or the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
ACCOUNT CANCELLATION
You may cancel your account at any time by sending an email to care@mysurefit.co.
CONTACTING MySureFit
If you have any questions about these Terms & Conditions, please contact MySureFit at care@mysurefit.co.
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