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Terms

TERMS AND CONDITIONS

 

Please review the following terms and conditions (“Terms of Use”) that govern your use and access (collectively, “Use”) of the kellwood.com website, including its services, applications, and content (collectively the “Site”). Your Use of our Site constitutes your agreement to follow and be bound by the Terms of Use and all applicable laws, and that any such access or use is undertaken at your own risk. These Terms of Use are subject to change at any time without prior notice. Any changes will be reflected on the Terms of Use page of the Site. In these Terms of Use, “we” and “our” means Kellwood Company LLC (“Kellwood”), and “you” means any person who visits the Site.

 

THESE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. DETAILS ARE SET FORTH BELOW.

 

The Terms of Use also incorporate by reference our Privacy Policy, which can be found here.

 

  1. 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.

 

Subject to your compliance with these Terms of Use, Kellwood grants you a limited, non-exclusive, non-transferable, non-sub-licensable license to access the Site for informational purposes only. No right, title or interest in the Site or any contents thereof is granted or transferred to you as a result of the limited license provided hereunder. Unless we give you written permission in advance, any other use of the Site, its content, and its information, including linking or framing to this website is strictly prohibited.

 

Unauthorized use of the Site is expressly prohibited by law and may result in severe civil and criminal penalties.

 

  1. Use of the Site

 

  1. Who May Use the Site

 

By using the Site, you represent and warrant that you are at least 18 years of age. You are solely responsible for ensuring that these Terms of Use are in compliance with all laws, rules and regulations applicable to you and the right to access the Site is revoked where these Terms of Use or use of the Sites is prohibited or conflicts with any applicable law, rule or regulation.

WHEN YOU ACCESS THE SITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, OR TO ANY CHANGES WE MAY SUBSEQUENTLY MAKE TO THESE TERMS OF USE, YOU MUST IMMEDIATELY STOP ACCESSING 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.

  1. 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:

 

 

  1. 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.

 

  1. Security

 

You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:

 

Violations of system or network security may result in civil or criminal liability.

 

  1. Disclaimers

 

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.

 

  1. 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.

 

Without limiting anything set out above, you hereby release each of the Indemnified Parties from all damages, liabilities, claims, actions, demands and costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with these Terms of Service, the Privacy Policy and/or any use by you of the Site.

 

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.

 

  1. Limitation of Liability

 

EXCEPT FOR A BREACH OF THESE TERMS OF USE BY YOU OR A VIOLATION OF INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOU OR KELLWOOD AND/OR ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE OR DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, THE DELAY OR INABILITY TO USE THE SITE, THE FUNCTIONALITY OF THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KELLWOOD AND/OR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

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.

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. EXCEPT FOR A BREACH OF THESE TERMS OF USE BY YOU OR  VIOLATION OF INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOUR OR OUR TOTAL LIABILITY FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO USE OF THE SITE OR $50 (WHICHEVER IS LESS).

 

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.

 

  1. Injunctive Relief

 

You acknowledge that any use of the Site contrary to these Terms of Use, or any transfer, sublicensing, copying or disclosure of any Site Contents may cause irreparable injury to Kellwood and its affiliates, and you hereby agree that Kellwood may seek equitable relief from a court of competent jurisdiction, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief. This paragraph shall apply notwithstanding the arbitration provisions in these Terms of Use.

 

  1. 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.

 

  1. Statute of Limitations

 

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to your use of the Site, or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred.

 

  1. 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.

 

  1. Dispute Resolution and Binding Arbitration

 

This section governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us or the Terms of Use or the Site or your use of the Site, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below. This section will survive after the Terms of Use terminate or your use of the Site ends.

 

  1. 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 info@kellwood.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.

 

  1. Arbitration. All disputes, claims, or controversies arising out of or relating to the Terms of Use, the Site, or to your relationship with Kellwood as a user of the Site (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Terms of Use) that are not resolved by the procedures identified above shall be resolved by individual (not class) binding arbitration to be conducted before a single arbitrator (“Arbitrator”) administered by the American Arbitration Association (https://www.adr.org or 1-800-778-7879) according to this Section and the applicable arbitration rules for that forum (“Arbitration Agreement”). You and Kellwood agree that the Federal Arbitration Act, 9 U.S.C. §§ 1-16, applies and governs the interpretation and enforcement of this Arbitration Agreement.

 

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms of Use, including but not limited to any claim that all or any part of these Terms of Use are void or voidable, or whether a claim is subject to arbitration. The Arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The Arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The Federal Arbitration Act and federal arbitration law apply to these Terms of Service. There is no judge or jury in arbitration and court review of an arbitration award is limited. It is important that you understand that the arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction.

 

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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. Survival and Severability. This Arbitration Agreement will survive the termination of your relationship with Kellwood. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms of Use; and (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement.

 

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.

 

  1. 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 info@kellwood.com with “DMCA Takedown Request” in the subject line.

 

To be effective, the notification must be in writing and contain the following information:

 

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.

 

  1. Entire Agreement

 

These Terms of Use embody the entire understanding and agreement between the parties respecting the subject matter of these Terms of Use and supersedes any and all prior understandings, representations, warranties, and agreements, both written and oral, between the parties respecting such subject matter.

 

  1. Modifications to this Agreement

 

Kellwood may change these Terms of Use at any time by posting modified terms on its website. We will do our best to provide you with advance notice of any modifications, but this may not always be possible or practicable.

 

  1. General Provisions

 

These Terms of Use have been prepared in the English Language and such version shall be controlling in all respects and any non-English version of these Terms of Use is solely for accommodation purposes. You agree that no joint venture, partnership, employment or agency relationship exists between Kellwood and you as a result of these Terms of Use or your use of the Site. Any and all rights and remedies of Kellwood upon your breach or other default under these Terms of Use will be deemed cumulative and not exclusive of any other right or remedy conferred by these Terms of Use or by law or equity on Kellwood, and the exercise of any one remedy will not preclude the exercise of any other. You may not assign these Terms of Use or any of your rights or obligations under these Terms of Use without Kellwood’s express written consent. These Terms of Use inure to the benefit of Kellwood’s successors, assigns, affiliates and licensees. The captions and headings appearing in these Terms of Use are for reference only and will not be considered in construing these Terms of Use. Notices to you may be made via either email or regular mail. The Site may also provide notices of changes to these Terms of Use or other matters by displaying notices or links to notices to you generally on the Site. All notices or other correspondence to Kellwood under these Terms of Use must be sent to the following electronic mail address for such purpose: info@kellwood.com

 

  1. Contact Us

 

If you have any questions or concerns about the Site or these Terms of Use, or wish to report a violation of these Terms of Use, please contact us at info@kellwood.com