CARBON38 TERMS OF SERVICE
Last Revised: August 27, 2015
Welcome to Carbon38 -- the platform that allows you to find the hottest, hardest-working fitness and lifestyle apparel brought to you by Carbon 38, Inc. (“Carbon 38,”
“we,” “us” or “our”).
These Terms of Service (“Terms”) apply to your access and use of the website (“Site”) and other online ph3s and services (collectively, the “Service”) of Carbon 38.
Accepting these Terms
BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS BELOW.
Please read all of the terms before you use the Service. If a term does not make sense to you, please let us know. If you don’t agree to all of the terms below, you may not use the Service.
We reserve the right to change these Terms from time to time. For example, we may need to change these Terms if we come out with a new feature. If we make changes, we will notify you by revising the date at the top of the page and, in some cases, we will provide you with additional notice (such as adding a statement to our homepage or sending you an email notification). We encourage you to review these Terms periodically to stay informed about our practices.
Whenever we make changes to these Terms, they are effective when the revised Terms are posted unless we notify you otherwise. If you continue to use the Service after the revised Terms have been posted, then you will be deemed to have accepted the changes to these Terms.
For users in the European Union: You understand that use of the Service may include disclosures to persons located outside of the European Economic Area, including countries that do not have laws that protect personal information in the same manner as countries within the European Economic Area.
Description of the Service
Through the Service, you can purchase fitness and lifestyle apparel from the hottest designers, purchase Carbon 38 gift cards, and learn about the latest trends in fitness, dance, wellness, and other topics. You can also indicate items that you like by clicking on the heart that appears in the upper-right corner of the particular item’s thumbnail picture. When you do so, it will be added to “My Favorites” in your account so you can keep track of the items you are interested in on the Site.
You may also provide ratings or reviews (collectively, “Reviews”) for products available on the Site. We appreciate honesty, but please keep it resh3l and clean.
When you create an account you must maintain the security of your password and accept all risk that someone may access your account without your permission. If you discover or suspect any Service security breaches, please let us know as soon as possible. You represent and warrant to us that all information that you provide in connection with your account is at all times accurate, truthful, current and complete. Carbon 38 reserves the right to deny any account at our discretion.
When you select an item to purchase, it will appear in your online gym bag (the “Gym Bag”). Once you have placed all items you would like to purch3n your Gym Bag and are ready to checkout, the applicable taxes and any shipping charges will be calculated and you will see the total amount due and owing to be paid by you. All payments must be made in U.S. dollars by credit or debit account via Carbon 38’s authorized payment processor. Carbon 38’s authorized payment processor will charge the credit or debit account provided by you to the Service for the total amount displayed in your Gym Bag.
You hereby authorize Carbon 38 or its authorized payment processor to charge the credit or debit card account provided by you for the total amount displayed in your Gym Bag for each purchase, and you represent and warrant that you are authorized to use and have fees charged to the credit or debit card account provided to Carbon 38.
Carbon 38 accepts refunds of purchased apparel that is still in its original condition (unworn with labels attached) within 21 days of shipping for a full refund or exchange. All items purchased on clearance, during a promotional sale or with a promotional code are eligible for return for Carbon 38 store credit only. For more information on our refund policy, which is hereby incorporated into these Terms, please visit our Returns & Exchanges page.
Right to Use the Service
On the condition that you fully comply with these Terms, Carbon 38 grants you a limited, nonexclusive, non-transferable and revocable license to access and use the Service for your own personal, non-commercial use. Except as expressly authorized by these Terms, you may not (a) modify, disclose, alter, translate or create derivative works of the Service, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Service, (c) disassemble, decompile or reverse engineer any of the software components of the Service, (d) copy, frame or mirror any part of the Service, (e) interfere with or disrupt the integrity or performance of the Service, or (f) attempt to gain unauthorized access to the Service or its related systems or networks.
Prohibited Use of the Service
You may not post or otherwise make available on or through the Service any of the following:
- Private information of any other persons (including names, email addresses, phone numbers, Social Security numbers and financial information);
- Content that is libelous, defamatory, abusive, offensive or hateful;
- Content that is obscene, pornographic, indecent or sexually explicit, depicts graphic, excessive or gratuitous violence;
- Content that is illegal, harmful or offensive or that would encourage, solicit, foster, glorify or provide instructions for any criminal or civil offense;
- Content that may infringe, misappropriate or violate any intellectual property rights, rights of privacy, rights of publicity or any other rights of others;
- Viruses, corrupted data or other harmful, disruptive or destructive files or code;
- Content that, in Carbon 38’s judgment, is objectionable, may restrict or inhibit another from enjoying the Service or may expose Carbon 38 or users of the Service to harm or liability of any type; and/or
- Content that you are contractually or legally required to keep confidential.
Also, you may not do any of the following in connection with the Service or other users:
- Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service;
- Collect any personal information about other users;
- Intimidate, threaten, stalk, bully or otherwise harass other users;
- Post spam or commercial messages through the Service;
- Create an account if you are not over 18 years of age;
- Use the Service for any illegal or unauthorized purpose or to engage in, encourage or promote any activity that is unlawful or that violates these Terms; or
- Circumvent or attempt to circumvent any filtering, security measures, rate limits or other features designed to protect the Service, its users, or third parties.
Your use of the Service is at your own risk. Carbon 38 is not responsible or liable for the conduct of, or your interactions with, any other users (whether online or offline) or for any related damage or harm. As a provider of interactive services, Carbon 38 is not liable for the content of any Reviews. Although we have no obligation to screen, edit or monitor Reviews, we reserve the right, and have the discretion, to screen, edit or remove any Reviews at any time, for any reason and without notice.
Reporting and Removal
Carbon 38 users may report content to Carbon 38 that they think violates these Terms, and Carbon 38 may remove such content, suspend or terminate the account of the user who posted or otherwise made available such content and/or take additional action to enforce these Terms against such user.
Also, in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Carbon 38 has adopted a policy of terminating, in appropriate circumstancesh3t Carbon 38’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. Carbon 38 may also at its sole discretion limit access to the Service or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Service infringes upon any copyright that you own or control, you may file a notification with Carbon 38’s Designated Agent as set forth below:
Designated Agent: General Counsel
Address of Designated Agent: 8075 West 3rd St., Ste. 400, Los Angeles, CA 90048
Email Address of Designated Agent: email@example.com
Phone number of Designated Agent: (888) 505-0897
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Carbon 38 or the alleged infringer as the result of Carbon 38 relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Carbon 38’s Rights
As between you and Carbon 38, all information, materials and content of the Service, including our trademarks and all text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms and other content is owned by Carbon 38 or is used with permission. When you create, share, link to, or otherwise make available any Reviews, you grant us a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Reviews throughout the world in any manner or media, on or off the Site. You hereby irrevocably waive in favor of Carbon 38 any and all moral rights that you may possess in or to any Reviews. Carbon 38 retains and reserves any and all intellectual property and other proprietary rights in and to its trademarks and nothing in these terms gives you a license or other right to use our trademarks.
Any suggestions, comments or other feedback you give us about the Service (the “Feedback”) will constitute our confih3l information. We are free to use, disclose, reproduce, license, distribute and exploit this Feedback as we see fit, without compensation to you or any obligation or restriction because of any intellectual property rights or otherwise.
EXCEPT AS REQUIRED OTHERWISE OF CARBON 38 BY APPLICABLE LAW, THE SERVICE AND ANY OTHER SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ( INCLUDING REVIEWS) ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), AND ALL OTHER TERMS WHICH MAY BE IMPLIED INTO THESE TERMS BY LAW, WITH RESPECT TO THE SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE (INCLUDING REVIEWS).
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CARBON 38 BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROPERTY OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE (INCLUDING THE SITE AND ANY REVIEWS) AND/OR THIRD-PARTY SERVICES OR MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF CARBON 38 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
FOR ANY LOSS OR DAMAGE THAT IS NOT EXCLUDED UNDER THESE TERMS, THE TOTAL LIABILITY OF CARBON 38 AND ITS DIRECTOR, EMPLOYEES, AGENTS, AFFILIATES AND INVESTORS WILL NOT EXCEED $200.
You will defend, indemnify, and hold us harmless from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to any conduct with respect to the Service or violation (or alleged violation) of these Terms or the rights of any third party by you or any person using your Carbon 38 account.
Changes to the Service
Carbon 38 reserves the right in our discretion to review, improve, change or discontinue, temporarily or permanently, the Service and/or any features, information, materials or content on the Service with or without providing notice to you. Carbon 38 will not be liable to you or any third party for any changes or discontinuance of the Service or any part of the Service.
Consent to Electronic Communications
By using the Service, you agree that we may communicate with you electronically regarding your use of the Service and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify us at firstname.lastname@example.org.
Suspension and Termination
Carbon 38 may suspend or terminate your rights to access or use the Service for any reason or for no reason at all and with or without notice at Carbon 38’s discretion. All of the terms of these Terms ( excluding the license grant) will survive any termination or suspension.
Governing Law; Arbitration
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH CARBON 38 AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CARBON 38.
These Terms shall be governed by and construed in accordance with the laws of the State of California and the United States of America, without resort to any conflict of law provisions.
In the event of any controversy or claim arising out of or relating in any way to these Terms or the Service, you and Carbon 38 agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If we do not reach settlement within a period of 60 days, then either of us may, by notice to the other demand mediation under the mediation rules of the American Arbitration Association in Los Angeles, California. We both give up our right to litigate our disputes and may not proceed to arbitration without first trying mediation, but you and Carbon 38 are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Whether the dispute is heard in arbitration or in court, you and Carbon 38 will not commence against the other a class action, class arbitration or other representative action or proceeding.
If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Los Angeles, California. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys' fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
For any disputes that are not handled by arbitration, you agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in Los Angeles, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms or the use or the Service.
Enforcement of these Terms is solely at Carbon 38’s discretion. Failure to enforce any part of these Terms in some instances does not constitute a waiver of our right to enforce the same or other part of these Terms in other instances. If any provision of these Terms is or becomes unlawful, void or otherwise unenforceable (including the warranty disclaimers and liability limitations above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions of these Terms will continue in full force and effect. The section headings of these Terms are for reference purposes only and will not affect the meaning or interpretation of these Terms.
These Terms (and the other policies and terms referred to above) make up the entire agreement between you and us regarding the Service, and they supersede any prior agreements that may have been made.
If you have any questions about these Terms, please email us at email@example.com or send a letter to:
Carbon 38, Inc.
8075 W. 3rd St., Ste. 400
Los Angeles, CA 90048
Notice for California Users
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.