Panel: Jay Greenberg (Director of eCommerce, Spencer Gifts), Johnny Lin (VP, Marketing & E-Commerce, Travelsmith).
Chaired by Bernardine Wu (CEO, FitForCommerce).
Last Updated: June 5, 2009
FitForCommerce LLC. ("FitForCommerce"), maintains the Site as a service to our users ("you" or "Users") who visit and use the Site following registration and subject to the payment of any applicable fees. These Terms apply to all services and features available on this website and its related sub-domains (the "Site"), (i) which are publicly accessible and (ii) to which you have access pursuant to your registration, including without limitation the eCommerce Know-How Navigation elements (collectively, the "Services").
To register for Services and create an account, you must complete the registration process by providing FitForCommerce with complete and accurate information as prompted by the registration form, including your e-mail address, company information, and a password. If any Services for which you register are fee-based Services, you may also be required to provide FitForCommerce with a valid credit card and other billing information. You shall protect your username and password and are solely responsible for any and all use that occurs under your account. You agree to notify FitForCommerce immediately of any unauthorized use of your account or any other breach of security.
2.1 Subject to these Terms, FitForCommerce hereby grants to you a limited, non-transferable, non-exclusive, non-sub-licensable, right and license to access and use the Content (as herein defined) of the Site and the Services for which you have registered. The term "Content" means all information, text, images, data, links, software programs, Services or other material posted on the sections of the Site that are (i) publicly accessible and (ii) available to you pursuant to the Services for which you have registered, whether created by FitForCommerce or provided by a third party for display on the Site and whether viewed on-line or printed by you.
2.2 You may view, copy, download, and print Content that is available to you on the Site, subject to the following conditions: (a) The Content may be used solely for your internal informational and business purposes, unless otherwise expressly provided on the Site with respect to the Services for which you have registered. No part of the Site or its Content may be reproduced, transmitted or otherwise distributed in any form to any third party, by any means, electronic or mechanical, including photocopying and recording for any other purpose. (b) To the extent any Service permits you to display Content on your own website, such Content may only be displayed on a single website that represents a single entity or brand, unless otherwise expressly provided on the Site with respect to such Service. (c) Copyright, trademark, and other proprietary notices may not be removed or obscured.
2.3 Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Site, the Services or any Content displayed on the Site, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with our prior written permission or the permission of such third party that may own the trademark or copyright of material displayed on the Site.
2.4 ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY FITFORCOMMERCE.
3.1 Unless otherwise noted, all Content contained on the Site is the property of FitForCommerce and/or its affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, patent law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners.
3.2 By submitting Content to the Site, you grant FitForCommerce a world-wide, royalty-free, perpetual, irrevocable, non-exclusive license to use, distribute, reproduce, modify, adapt, create derivative works from, and publicly perform or display such Content. This license shall remain in effect until we delete the Content from our systems.
4.2 FitForCommerce is not responsible or liable for the conduct of Users or for views, opinions and statements expressed in Content submitted through the Site. FitForCommerce does not prescreen information submitted to the Site. With respect to such Content posted on the Site, FitForCommerce acts as a passive conduit for such distribution and is not responsible for Content. Any opinions, advice, statements, services, offers or other information in Content provided by Users are those of the respective author(s) or distributor(s) and not of FitForCommerce. FitForCommerce neither endorses nor guarantees the accuracy, completeness, or usefulness of any such Content. You are responsible for ensuring that Content submitted to the Site is not provided in violation of any copyright, trade secret or other intellectual property rights of another person or entity or of any applicable law. You shall be solely liable for any damages resulting from any infringement of copyrights, trade secret, or other intellectual property rights, or any other harm resulting from your uploading, posting or submission of Content to the Site.
4.3 FitForCommerce has the right, but not the obligation, to monitor Content submitted to the Site to determine compliance with these Terms and any other applicable rules that we may establish from time to time. FitForCommerce the right, in our sole discretion, to edit or remove any Content submitted to or posted in any online discussion forum or chat room provided through the Site. Without limiting the foregoing, we have the right to remove any Content that FitForCommerce, in its sole discretion, finds to be in violation of these Terms or otherwise objectionable. You are solely responsible for the Content that you post to the Site.
5.1 By accessing our website or a service provided through our website, you agree to abide by the following standards of conduct. You agree that you will not, and will not authorize or facilitate any attempt by another person to, use our website or any related service to:
(a) Transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by FitForCommerce in its sole discretion.
(b) Post defamatory statements.
(c) Post hateful or racially or ethnically objectionable Content.
(d) Post Content which infringes another's copyright, trademark or other intellectual property right, or misappropriates at trade secret.
(e) Post unsolicited advertising or solicitations or unlawfully promote products or services.
(f) Harass, threaten or intentionally embarrass or cause distress to another person or entity.
(g) Impersonate another person.
(h) Promote, solicit, or participate in any multi-level marketing or pyramid schemes.
(i) Exploit children under 18 years of age.
(j) Engage in disruptive activity such as sending multiple messages in an effort to monopolize the forum.
(k) Introduce viruses, worms, Trojan horses and/or harmful code to or otherwise attempt to disrupt or interfere with the Site.
(l) Decompile, reverse engineer or obtain unauthorized access to any software or computer system through the Site.
(m) Invade the privacy of any person, including but not limited to posting personally identifying or otherwise private information about a person without their consent (or their parent's consent in the case of a child under 13 years of age).
(n) Solicit personal information from children under 13 years of age.
(o) Violate any federal, state, local, or international law or regulation.
(p) Encourage conduct that would constitute a criminal or civil offense or violation of these Terms.
5.2 The foregoing list is only representative of the conduct not permitted under these Terms and is not exhaustive. FitForCommerce does not screen the behavior of Users and is not liable for their actions or violations of these Terms. If you suspect a User is in violation of these Terms, please contact FitForCommerce at firstname.lastname@example.org Any conduct deemed inappropriate by FitForCommerce, in its sole discretion, may result in suspension or termination of your FitForCommerce account.
6.1 The Site may contain links to non-FitForCommerce websites that are provided to you as a convenience. Any outside website accessed from the Site is independent from FitForCommerce, and FitForCommerce has no control over the content of such websites. FitForCommerce is not responsible for the content of any linked website or for any loss or damage incurred in connection with your use such links or dealings with the operators of such non-FitForCommerce websites.
6.2 In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by FitForCommerce of that third party or of any product or service provided by a third party. Likewise, a link to any non-FitForCommerce website does not imply that we endorse or accept any responsibility for the content or use of such website.
Certain Services are only available subject to your payment of an applicable fee for such Service. As a condition of your continued use of and access to such Services, you agree to pay FitForCommerce the fees indicated on the then-current fee schedule [link] available on the Site, and FitForCommerce reserves the right to deactivate your access to such Services for failure to pay any such applicable fee.
a. By completing the purchase for fee-based services , you are expressly agreeing that we are permitted to bill you a periodic subscription fee and any other charges you may incur in connection with your use of the Services; including applicable tax. You agree that the Company can either charge or debit, as applicable, against your payment method, including a checking account. The subscription fee will be billed at the beginning of your subscription and on each renewal thereafter unless and until you cancel your membership. We will automatically bill your Payment Method each period on the calendar day corresponding to the commencement of your membership. In the event your membership began on a day not contained in a given month, we will bill your payment method on the last day of such month. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. We may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes.
b. In case of non-payment of any sum due from you or of any other breach or non-observance by you of any provision of this Agreement, the Company shall have the right to terminate the your access to the Site and Services immediately without prejudice to the right to recover all sums payable by you or to any other right or remedy available to the Company.
c. The Company reserves the right to change its payment policy and the Fees charged for the Services from time to time, with such changes becoming effective immediately. Unless otherwise stated, all fees are quoted in US Dollars and exclude any and all other applicable taxes.
d. You agree to pay to the Company the Fees for any and all Services you purchase from the Company. You further agree that you are responsible for paying any and all applicable taxes. All Fees and any such applicable taxes shall be payable by you in full in advance and are non-refundable.
e. You may cancel your subscription to the Services at anytime, and cancellation will be effective immediately. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-PERIOD SUBSCRIPTION PERIODS. To cancel, simply email email@example.com and include your username. We reserve the right to terminate your account for any or no reason.
f. In the event that any individual component of the Services paid for by you are disputed then the parties shall endeavor in good faith to reach agreement in relation to the disputed Services.
You recognize and agree that FitForCommerce may implement mechanisms allowing us and other Users to track your contributions to the Services and rate your performance as a User. FitForCommerce reserves the right to collect feedback regarding your performance and to post such feedback on the Site. You may not take any actions that may undermine the integrity of the feedback system.
If you believe that any materials on this website infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information:
(1) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work;
(2) identification of the material that you believe to be infringing and its location, including a description of the material, its website location or other pertinent information that will help us to locate the material;
(3) your name, address, telephone number, and email address;
(4) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law;
(5) a statement that the information in your claim is accurate; and
(6) a statement that "under penalty of perjury," you declare that you are the lawful copyright owner or are authorized to act on the owner's behalf.
g. INDEMNIFICATION You agree to indemnify, defend and hold harmless FitForCommerce, its officers, directors, employees, agents or affiliates, at your expense, against any and all third party claims, actions, proceedings, and suits brought against FitForCommerce or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by FitForCommerce or any of its officers, directors, employees, agents or affiliates, arising out of or relating to
(a) your breach of any term or condition of these Terms, or
(b) your use of the Site or the Services. In such a case, FitForCommerce will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. FitForCommerce reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
You hereby release FitForCommerce, its officers, directors, employees, agents and affiliates from any and all claims, demands, losses, damages, rights, and actions of any kind including, without limitation, personal injuries, death and property damage, that are either directly or indirectly related to or arise from
(a) any interactions with other Users,
(b) any incorrect or inaccurate Content (including any information in profiles) posted on or through the Site or Services, whether caused by Users or by any of the equipment or programming associated with or utilized in the Site or Services, or
(c) conduct by any User on the Site or Services. If you are a California resident, you hereby waive California Civil Code Section 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."
THE SITE, THE SERVICES AND ALL FITFORCOMMERCE TECHNOLOGY ARE PROVIDED "AS IS" AND AS AVAILABLE. THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY FITFORCOMMERCE EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, THE SERVICES AND ALL FITFORCOMMERCE TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. THE INFORMATION AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE OR SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. FITFORCOMMERCE DOES NOT WARRANT THAT
(A) THE SITE, THE SERVICES OR OTHER FITFORCOMMERCE TECHNOLOGY WILL MEET YOUR NEEDS,
(B) THE SITE, THE SERVICES OR OTHER FITFORCOMMERCE TECHNOLOGY WILL BE ERROR-FREE OR ACCESSIBLE AT ALL TIMES,
(C) DEFECTS WILL BE CORRECTED,
(D) THE SITE, THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR
(E) THE USE OR THE RESULTS OF THE USE OF THE SITE OR SERVICES OR THE CONTENT MADE AVAILABLE AS PART OF THE SITE OR SERVICES WILL BE CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE.
The foregoing exclusions and disclaimers are an essential part of these Terms and formed the basis for determining the price (if any) charged for the Services. Some states do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.
12.1 FITFORCOMMERCE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF THE SITE OR SERVICES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF FITFORCOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 FitForCommerce's cumulative liability to you or any other party for any loss or damage resulting from any claims, demands, or actions arising out of or relating to these Terms shall not exceed ten dollars (US$10).
Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you.
13.1 Notwithstanding any provision of these Terms, FitForCommerce reserves the right, in its sole discretion, without any notice or liability to you, to
(a) terminate your license to use the Site, the Services and Content, or any portion thereof;
(b) block or prevent your future access to and use of all or any portion of the Site, the Services or Content;
(c) change, suspend or discontinue any aspect of the Site, the Services or Content; and
(d) impose limits on the Site, the Services and Content.
14.1 These Terms represent the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties.
14.2. This Agreement shall be treated as though it were executed and performed in New Jersey and shall be governed by and construed in accordance with the laws of the State of New Jersey (without regard to conflict of law principles). Any cause of action by you with respect to the Service (and/or any information, products or Services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. This Agreement and all incorporated agreements and your information may be automatically assigned by the Company in our sole discretion to a third party in the event of an acquisition, sale or merger. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.
14.4 Any legal controversy or legal claim arising out of or relating to this Agreement or our services, excluding legal action taken by the Company to collect or recover damages for, or obtain any injunction relating to, Service operations, intellectual property, and our services, shall be settled solely by binding arbitration in accordance with the commercial arbitration rules of JAMS. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Newark, New Jersey, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or the Company may seek any interim or preliminary relief from a court of competent jurisdiction in Newark, New Jersey, necessary to protect the rights or property of you and the Company pending the completion of arbitration. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS.
14.5 FitForCommerce makes no representation that information on this Site is appropriate or available for use outside the United States. Those who choose to access this Site from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws. The FitForCommerce Technology is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals.
14.6 Any notices to FitForCommerce, Inc must be sent via e-mail addressed to: firstname.lastname@example.org and are deemed given upon receipt.
14.7 If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect.
14.8 A waiver of any default of these Terms is not a waiver of any subsequent default.
14.9 You represent and warrant that you are eighteen (18) years of age and that you have the right and ability to enter into these Terms. If you are under eighteen (18) years of age, your legal guardian has read and agrees to these Terms.
14.10 These Terms shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
If you have any questions regarding these Terms or your use of the Site or Services, please submit them to us at email@example.com.