Terms of Service
Cotton Club Canada, INC. TERMS OF SERVICE
Last updated on January 31, 2016
THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND COTTON CLUB CANADA, INC. (“WE” OR “Cotton Club Canada”), THE OWNER AND OPERATOR OF THE WWW.COTTONCLUBCANADA.CA WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND THE PRODUCTS SOLD ON IT AND MEMBERSHIPS SOLD TO IT. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, THE SITE.
By signing up for a Membership (as defined below), you represent, acknowledge and agree that you are at least the age of majority in your jurisdiction of residence, or if you are under the age of majority in your jurisdiction of residence, that you are at least 13 years old, and that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering on behalf of a minor, you hereby agree to bind said minor to this Agreement and to fully indemnify and hold harmless Cotton Club Canada if said minor breaches or disaffirms any term or condition of this Agreement.
1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
1.1 – CHANGES TO THE SITE
Cotton Club Canada may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
1.2 – PERSONAL INFORMATION/PRIVACY
Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Memberships (both as defined below in Section 3.1) and to update that information as soon as possible after any information provided changes. Cotton Club Canada reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that Cotton Club Canada uses a third party payment processing service to processing orders and bill fees to your credit card.
2 – PASSWORDS; USE OF SITE
2.1 – PASSWORDS
If you do not log in through a third party website, you will be required to register and create an account by providing your email address and a password. You are responsible for maintaining the confidentiality of your password, and you are responsible for all activities that occur using your email and password. You agree not to share your password, let anyone else access your account or do anything else that might jeopardize the security of your passwords or account. You agree to notify Cotton Club Canada if there is any unauthorized use of your password or account on this Site or if you know of any other breach of security in relation to this Site.
2.2 – USE OF SITE; PROHIBITIONS
Subject to your compliance with this Agreement, Cotton Club Canada hereby grants you a limited, personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, create derivate works from or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Content or otherwise attempt to gain unauthorized access to any portion of the Site or Content or any other systems or networks connected to the Site, or to any server of Cotton Club Canada or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace, harvest or compile any information on any other person who visits the Site; (e) use the Site or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site or Content.
3 – TERMS OF SALE
3.1 – SALES OF PRODUCTS AND MEMBERSHIPS TO END USERS ONLY
Cotton Club Canada sells underwear and socks/ hosiery (the “Product(s)”) from the Site to end-user customers who purchase monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. We reserve the right to limit the quantity of memberships purchased per person, per household or per order. The Membership and all rights and privileges conferred are personal and non-transferable.
3.2 – PRICING
Memberships are offered by Cotton Club Canada through the Website are only an offer to conclude a sales contract. The sales contract is only concluded upon the confirmation of the order by e-mail by Cotton Club Canada to You. The price of a product as shown on the Website is the GROSS PRICE of the product excluding shipping, and not including any applicable taxes. The total price of your order will be reflected on Our final checkout page. An order receipt shall be sent to the email address you provided during sign up showing the final total price as well.
3.3 – REFUND POLICY
If you are dissatisfied with the Product for any reason, Cotton Club Canada will refund the amount paid for your most recent month of service. Refund requests must be made directly to Cotton Club Canada at firstname.lastname@example.org. All refund requests must be made within thirty (30) days of the date of delivery by Cotton Club Canada. In response to your refund request, Cotton Club Canada will credit the amount paid for the returned Product (less any shipping and handling costs and fees related to the original purchase, which are non-refundable) to the credit card you used to make the original purchase. Notwithstanding the foregoing, Cotton Club Canada does not control when a specific credit card company processes a chargeback transaction. You are responsible for contacting your credit card company if you have questions about the status of the chargeback.
Cotton Club Canada shall in its sole discretion provide a refund for a request that is received by Cotton Club Canada more than thirty (30) days after the date of original delivery. Cotton Club Canada also does not provide a refund for returned Products that have been worn, that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
3.4 – PAYMENT METHODS; MEMBERSHIP TERMS AND MEMBERSHIP CANCELLATION POLICY
Cotton Club Canada accepts the following forms of payment: (i) Credit Card (Visa, MasterCard, and American Express) and (ii) debit card.. You agree to pay all fees charged to your account based on Cotton Club Canada’s fees, charges, and billing terms in effect as shown on the payment page when you first sign-up for a Membership to the Site. As stated previously and for purposes of clarification, the price of a product as shown on the Website is the GROSS PRICE of the product not including shipping, and not including any applicable taxes. The total price of your order will be reflected on Our final checkout page. An order receipt shall be sent to the email address you provided during sign-up showing the final total price of the Membership as well. You are responsible for paying the amount reflected on Our final checkout page. If you do not wish to pay the final amount reflected on Our final checkout page you are welcome to not sign up for Membership. Any applicable taxes shall be based on the address that you provide as the shipping address when you register for a Membership. You authorize Cotton Club Canada or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. You represent and warrant that you are the cardholder of the credit card used. If your credit card is rejected by the card issuer, if you do not pay on time or if your credit card cannot be charged for any reason, Cotton Club Canada reserves the right to either suspend or terminate your account and Membership. All sales and payments will be in Canadian Dollars.
IMPORTANT NOTICE TO CONSUMER: Cotton Club Canada Membership is a month-to-month, cancel-at-any-time, biennial membership. At least thirty (30) days prior to your biennial anniversary date Cotton Club Canada will send You an email requesting whether You would like to renew your Membership. In the event We do not get a response within thirty (30) days We will automatically renew your biennial membership. Your Membership is billed month-to-month and may be cancelled at any time by emailing email@example.com. To cancel a Membership, please email firstname.lastname@example.org with your request. All cancellation requests must be received by the first day of the month. Cancellation requests received after the first of the month may take effect the following month due to Our automatic system policies. If you cancel your Membership, you will enjoy your Membership benefits until the end of the then-current Membership term, and your Membership benefits will expire at the end of the then-current Membership term for which you have paid. You will not be eligible for a prorated refund of any portion of the Membership fees paid for any unused days of the then-current Membership term. There are absolutely no early termination fees or any other fees of any kind associated with cancelling a Membership during the biennial membership term.
3.5 – SHIPPING AND PRODUCT ACCEPTANCE
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are delivered via Canada Post. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
3.6 – CORRESPONDENCES WITH MEMBERS
Any and all correspondences sent, issued, expressed, or transmitted by Cotton Club Canada or any of its affiliates to You shall strictly be in the English language. Correspondences shall include but not be limited to Cotton Club Canada mailing envelopes and/or boxes, postcards, business cards, and any and all other mailings including but not limited to electronic mail.
4 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that Cotton Club Canada or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
Cotton Club Canada is a pending trademark of Cotton Club Canada in Canada. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Cotton Club Canada.. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
5 – THIRD PARTY SITES; INDEMNIFICATION
5.1 – THIRD PARTY WEB SITES
5.2 – INDEMNIFICATION
You hereby agree to defend, indemnify and hold each of the Cotton Club Canada Parties (as defined in Section 6 below) harmless from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your (or anyone acting under your password) use or misuse of the Site, Content or Products.
6 – DISCLAIMER OF WARRANTIES
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES AND THE EXCLUSION OR LIMITATION OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS ARE FURNISHED TO YOU WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. Cotton Club Canada, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “Cotton Club Canada PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; (D) DOES NOT REPRESENT AND WARRANT THAT THE SITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND (E) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND Cotton Club Canada. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Cotton Club Canada OR ANY PERSON ON BEHALF OF Cotton Club Canada SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
7 – LIMITATION OF LIABILITY
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OR OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
7.1 – IN NO EVENT SHALL ANY Cotton Club Canada PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A Cotton Club Canada PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 – IF, NOTWITHSTANDING THE FOREGOING, A Cotton Club Canada PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS, THE RELEVANT Cotton Club Canada PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID Cotton Club Canada FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
8 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
8.1 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER
8.1(A) – UNITED STATES
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at email@example.com or Cotton Club Canada, Attn: Customer Service, 52 Mill St S, Waterdown, L0R 2H0. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO Cotton Club Canada’S ENFORCEMENT AND PROTECTION OF ITS NAME AND INTELLECTUAL PROPERTY RIGHTS) through binding arbitration or small claims court instead of in courts of general jurisdiction. This includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.
We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 8.2 below). ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Neither you nor Cotton Club Canada has the right to act as a class representative or class representative or participate as a member of a class of claimants with respect to any claim.
All disputes relating in any way, directly or indirectly, to Cotton Club Canada for breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort will be arbitrated according to the rules of the American Arbitration Association (AAA) in Los Angeles, California, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of this Agreement, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i) there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii) all damages claims and awards will be governed by the provisions of the California Civil Code, and (iii) the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the AAA fee, you agree to notify all persons against whom you have an arbitrable claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties.
8.1B – CANADA
After any dispute regarding the Program arises, the parties involved in the dispute may agree to resolve the dispute using arbitration. If the parties elect to use arbitration, claims shall be referred to the ADR Institute of Canada. For a copy of the procedure to file a claim, or for other information about this organization, contact them as follows: www.adrcanada.ca.
8.2 – CHOICE OF LAW
Unless the applicable laws of your, such as Quebec, require that the laws of that jurisdiction govern, in which case, the laws of such jurisdiction are to govern, this Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Arbitration or court proceedings must be in Los Angeles County, California. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
9 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
9.1 – ELECTRONIC COMMUNICATIONS
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically regarding administrative or account information. Since these administrative or account electronic communications are essential to the successful and effective functioning of your Membership the sole remedy to opt-out is to cancel your account. You may cancel your account by emailing your request to firstname.lastname@example.org. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
9.2– GENERAL TERMS