TERMS AND CONDITIONS
- Site Contents
All images, graphics, logos, button icons, audio, digital downloads, code, software, trademarks, trade dress and other content used on or incorporated into this Site, both individually and as a whole, are subject to intellectual property rights held by or licensed to Kellwood Company LLC or its affiliates.
Unauthorized use of the Site is expressly prohibited by law and may result in severe civil and criminal penalties.
- Use of the Site
- Who May Use the Site
Your access to the Site is subject to your continued compliance with these Terms of Service and all applicable laws. Your right to access the Site will terminate immediately, without any further action by Kellwood, if you breach these Terms of Service.
- Prohibited Uses
The Site may be used only for lawful purposes. You are responsible for your own communications, including those submitted through the “contact us” page on the Site. Kellwood specifically prohibits any use of the Site, and requires all users to agree not to use the Site, for any of the following purposes:
- Engaging in conduct that would constitute a criminal offense, giving rise to civil liability, or otherwise violating any city, state, national or international law or regulation, or that would fail to comply with accepted Internet protocol
- Transmitting or communicating material that is copyrighted or otherwise owned by a third party, unless you have permission of the owner
- Transmitting or communicating trade secrets, unless you have permission of the owner
- Transmitting or communicating material that infringes on any other intellectual property, privacy, or publicity right of another
- Using the Site to harass, disrupt, or unlawfully interfere with Kellwood’s business interests
- Inaccuracies and Errors
We endeavor to provide accurate, current and complete information on the Site. However, we cannot guarantee that our Site will be free from human and/or technical errors, and the Site may contain mistakes, omissions or inaccuracies, and some information may not be complete or current. We therefore reserve the right to the fullest extent allowed by law to correct any errors or omissions and to change or update information at any time without prior notice. We sincerely apologize for any inconvenience this may cause.
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:
- Accessing data not intended for you or logging on to a Kellwood server that you are not authorized to access
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization (or succeeding in such an attempt)
- Attempting to interfere or interfering with the operation of our Site, our provision of services to any other visitors to our Site and our hosting provider or our network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “email bombing” or “crashing” the Site
- Forging any TCP/IP packet header or any part of the header information in any email or transmission to our Site
Violations of system or network security may result in civil or criminal liability.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THIS SITE AND ALL INFORMATION, CONTENT ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE (COLLECTIVELY, THE “SITE CONTENTS”) ARE PROVIDED ON AN “AS IS” BASIS. KELLWOOD DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. KELLWOOD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE, THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE SITE CONTENTS, THAT THE WEBSITE OR THAT THE SITE, OR ITS SERVER, ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE IS AT YOUR OWN RISK.
- Indemnification and Release
To the fullest extent of the law, you agree to indemnify, defend and hold harmless Kellwood, its affiliates, officers, directors, employees, consultants, agents, managers, licensors, licensees, successors, assigns, service providers, and partners (“Indemnified Parties”), from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees as and when incurred) arising out of or in connection with (i) your use of and access to the Site, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third-party right, including without limitation any right of privacy, right of publicity or intellectual property rights; or (iv) your violation of any applicable law, rule or regulation.
CALIFORNIA RESIDENTS: YOU EXPRESSLY WAIVE CA CIVIL CODE §1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
- Limitation of Liability
IN STATES AND JURISDICTIONS IN WHICH LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARE PROHIBITED, SUCH LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED.
UNDER NO CIRCUMSTANCES WILL KELLWOOD AND/OR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE, YOUR DATA OR THE INFORMATION CONTAINED THEREIN. WE RESERVE THE RIGHT AT ALL TIMES TO DISCLOSE ANY INFORMATION THAT WE DEEM NECESSARY TO COMPLY WITH ANY APPLICABLE LAW, RULE, REGULATION, LEGAL PROCESS OR GOVERNMENTAL REQUEST. YOU WAIVE AND HOLD HARMLESS KELLWOOD AND ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS AND ASSIGNS FROM ANY CLAIMS RESULTING FROM ANY ACTION RELATING TO YOUR INFORMATION OR TAKEN AS A RESULT OF ANY SUCH DISCLOSURE. KELLWOOD MAKES NO REPRESENTATION THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE AT LOCATIONS OUTSIDE OF THE UNITED STATES. ACCESS TO THE SITE FROM TERRITORIES WHERE SUCH SERVICES ARE ILLEGAL IS STRICTLY PROHIBITED. IF YOU ACCESS THE SITE FROM A LOCATION OUTSIDE OF THE UNITED STATES, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL AND OTHER APPLICABLE LAWS.
- Injunctive Relief
- Waiver and Severability
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. No waiver by Kellwood of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of any other term or condition and any failure of Kellwood to assert a right or provision under these Terms of Service.
- Statute of Limitations
- Choice of Law and Forum
This Agreement shall be governed by and construed under the laws of the State of California, USA, as applied to agreements entered into and to be performed in California-by-California residents. Subject to and without waiver of the arbitration provisions below, you agree that any judicial proceedings (other than small claims actions in consumer cases as discussed below) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of Los Angeles, California, or federal court for the Central District of California.
- Dispute Resolution and Binding Arbitration
- Informal Dispute Resolution. Prior to taking any formal action against Kellwood (including arbitration and court actions), you agree to attempt to resolve any dispute you have with Kellwood informally first, by contacting us directly at email@example.com, and providing a brief description of the dispute, your requested relief, and your contact information (“notice of dispute”). You agree to attempt to resolve any and all disputes you may have with Kellwood in good faith informally through this mechanism. You and Kellwood will attempt to resolve any dispute through informal negotiation within 30 days from the date that the notice of dispute is sent. If we are unable to resolve a dispute by negotiation, you agree to proceed in accordance with the following terms.
Kellwood will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000, unless the Arbitrator determines that your claims were frivolous, in which case Kellwood will not reimburse any portion of your fees due to the American Arbitration Association, unless otherwise required by the applicable law or rules of the American Arbitration Association. Likewise, Kellwood will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION. You agree to arbitrate with Kellwood only in your individual capacity and not as a representative or member of a class or in any consolidated or representative proceeding. As such, your claims may not be joined with any other claims and there shall be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. For certain claims, like violations of these Terms of Service or breaches of intellectual property covenants, we reserve the right to seek injunctive relief in a court of competent jurisdiction. All arbitrations shall be initiated in Los Angeles County, California.
- Waiver of Jury Trial. YOU AND KELLWOOD WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Kellwood are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Kellwood over whether to vacate or enforce an arbitration award, YOU AND KELLWOOD WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- Class Action Waiver. YOU AND KELLWOOD 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 ACTION. As such, your claims may not be joined with any other claims and there shall be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative. Unless both you and Kellwood agree in writing, no Arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The Arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
- Exceptions for Intellectual Property Rights and Small Claims Actions. Notwithstanding the above agreement to arbitrate all disputes, You and Kellwood both agree that either Kellwood or You may: (1) bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect intellectual property rights, including patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights; or (2) elect to pursue your claim in your local small-claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis, and such claim within the applicable jurisdictional requirements.
YOU UNDERSTAND AND AGREE THAT THE ABOVE DISPUTE PROCEDURES SHALL BE YOUR SOLE REMEDY IN THE EVENT OF DISPUTE BETWEEN YOU AND KELLWOOD REGARDING ANY ASPECT OF THE SITE (INCLUDING YOUR USE THEREOF) AND THAT YOU ARE WAIVING YOUR RIGHT TO LEAD OR PARTICIPATE IN A LAWSUIT INVOLVING OTHER PERSONS, SUCH AS A CLASS ACTION.
- Notice and Procedure for Claims of Copyright or Intellectual Property Infringement
All contents of the Site including but not limited to text, design, graphics, interfaces, or code are the property and Copyright of Kellwood. All rights reserved.
All trademarks, service marks, and trade names are trademarks or registered trademarks and are proprietary to Kellwood, or other respective owners that have granted Kellwood license to use such marks.
If you believe that any content appearing on the Site, including content created and/or displayed by Kellwood, infringes your copyright, you should notify us in accordance with the procedure set forth below. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE.
A notification of claimed copyright infringement should be e-mailed to our copyright agent at firstname.lastname@example.org with “DMCA Takedown Request” in the subject line.
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive copyright interest.
- a description of the copyrighted work that you claim has been infringed.
- a description of where the material that you claim is infringing is located on the Site that is reasonably sufficient to enable us to identify and locate the material.
- how we can contact you, such as your address, telephone number and e-mail address.
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or by law; and
- a statement by you that the above information in your notice is accurate and under penalty of perjury that you are authorized to act on behalf of the copyright owner or the owner of an exclusive right in the material.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Kellwood and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Kellwood’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
- Entire Agreement
- Modifications to this Agreement
- General Provisions
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