SpottedFashion Terms of Service
January 1, 2022
These Terms of Service are applicable to our SpottedFashion website located at www.SpottedFashion.com, (which are referred to collectively in these Terms of Service as “SpottedFashion”). SpottedFashion is provided to you by Midley, Inc. (“Midley,” “we,” “us” and “our”). These Terms of Service contain the terms and conditions that govern your use of SpottedFashion, and your use of SpottedFashion constitutes your acceptance of and agreement to these Terms of Service.
Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and we may have against each other are resolved (see section 13 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with section 13(E). Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Updates to these Terms of Service. We may modify these Terms of Service from time to time. We will notify you of material changes to these Terms of Service by posting the amended terms on SpottedFashion at least thirty (30) days before the effective date of the changes, and posting a notice on our website announcing the forthcoming changes. If you are a registered user of SpottedFashion, we will notify you of material changes to these Terms of Service by email at least thirty (30) days before the effective date of the changes. It is therefore very important that you make sure we have a current email address for you on file so that you will receive notice of any material changes. If you do not agree with the proposed changes, you should discontinue your use of SpottedFashion prior to the time the new Terms of Service take effect. If you continue using SpottedFashion after the new terms take effect, you will be bound by the modified Terms of Service.
Affirmative Representations Regarding Your Use of SpottedFashion. When you use SpottedFashion, you represent that: (a) the information you submit is truthful and accurate; (b) your use of SpottedFashion and your use of services available on SpottedFashion do not violate any applicable law or regulation; (c) you are 13 years of age or older; and (d) you are of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
4. Member Accounts and Registration
Member Registration. You can visit and browse SpottedFashion without becoming a registered member of SpottedFashion, but you will not be able to access the interactive portion of SpottedFashion, PurseForum, or other interactive features, unless you are a registered member of SpottedFashion.. If you sign up to become a registered member of SpottedFashion, you agree: (a) to provide true, accurate, current and complete information about yourself as prompted by SpottedFashion registration form (the “Registration Data”); (b) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete; (c) not to use the name of another person with the intent to impersonate that person or in a way that otherwise causes confusion as to the origin of your account; which are incorporated into these Term of Service by reference.
Member Accounts. You will be required to create a user I.D. and password that will be associated with your member account. You may only create one nickname that will be associated with your SpottedFashion account. You may not: (a) select or use as a user I.D. a name of another person with the intent to impersonate that person; (b) use as a user I.D. a name subject to any rights of a person other than you without appropriate authorization; or (c) use as a user I.D. a name that is otherwise offensive, vulgar or obscene. We reserve the right to refuse registration of, or to cancel, a user I.D., in our sole discretion. You will be responsible for maintaining the confidentiality of your user I.D. and password. As part of your member account, you will be able to create a user profile, invite other registered members to become your contacts on SpottedFashion and post reviews and upload content that you want to share with other members of SpottedFashion and the public generally.
5. Rules Governing User Contributions. If you are a member of SpottedFashion and you are logged in to your member account, you may be able to submit comments and content through PurseForum, and other interactive areas on SpottedFashion, including photos and videos (“Contributions”). By agreeing to these Terms of Service, you represent and warrant that you own the rights to any Contributions that you post on or through PurseForum or other interactive features on SpottedFashion, or that you have authorization from the rights owner to post such Contributions on or through our websites. You are entirely responsible for the content of, and any harm resulting from, any Contributions that you post on or through PurseForum or other interactive features on SpottedFashion. If additional rules apply to other interactive features on SpottedFashion, we will provide those rules to you prior to the time you begin using the applicable interactive feature.
6. Rights in Contributions
Ownership of Contributions. We do not claim any ownership rights in the Contributions that you post on or through SpottedFashion. After posting your Contributions on SpottedFashion, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.
Grant of License to Us for Contributions. By making a Contribution to SpottedFashion, you grant us a perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to us), fully-paid, royalty-free (meaning that we are not required to pay you to use your Contribution), sublicensable (so that we can use affiliates, subcontractors and other partners such as wireless carriers and hosted service providers to make SpottedFashion available to you) and worldwide (because the Internet is global in reach) license to use, modify, create derivative works of, publicly perform, publicly display, reproduce and distribute the Contribution in connection with SpottedFashion, our business or the promotion thereof in any media formats and through any media channels now known or subsequently created. This license does not grant us the right to sell your Contributions. If you remove your Contributions from SpottedFashion, we will cease use of your Contributions as soon as practicable; however, you understand and agree that we may retain archived copies of your Contributions.
7. Our Intellectual Property Rights. Except for your Contributions and the Contributions of other users of SpottedFashion, all of the content on SpottedFashion (“Materials”) and the trademarks, service marks, and logos contained on SpottedFashion, are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. SpottedFashion and the Materials are for your information and personal use only and not for commercial exploitation. All rights not expressly granted in and to SpottedFashion and the Materials are reserved. You further agree not to access SpottedFashion by any means other than through the interface that we provide, unless otherwise specifically authorized by us in a separate written agreement.
8. Our Management of SpottedFashion; User Misconduct
Our Right to Manage SpottedFashion. We reserve the right, but do not undertake the obligation to: (a) monitor or review SpottedFashion for violations of these Terms of Service and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (c) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Contribution or any portion thereof that may violate these Terms of Service, the law or any of our policies, or that is excessive in size or burdensome; (d) manage SpottedFashion in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of SpottedFashion; (e) screen our users or members, or attempt to verify the statements of our users or members; and/or (f) monitor disputes between you and other users or to termination or block you and other users for violating these Terms of Service.
Interactions with other Users. You are solely responsible for your interactions with other users of SpottedFashion. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on SpottedFashion and that you give to other users of SpottedFashion. You are discouraged from publicly posting your telephone number or street address on SpottedFashion. Information posted to SpottedFashion by other users of SpottedFashion may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through SpottedFashion.
Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF these Terms of Service, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF SpottedFashion TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN these Terms of Service, OR OF ANY APPLICABLE LAW OR REGULATION.
Digital Millennium Copyright Act & Intellectual Property Rights Policy; Communications Decency Act. We consider the protection of copyright, trademark, and other intellectual property rights of utmost importance. We follow the provisions of the Digital Millennium Copyright Act (DMCA), and, in addition to following the notice and take down provisions of the DMCA, we may also take similar action in response to notices based on other rights. Further, we will terminate in appropriate circumstances the account and access rights of users of our services who are repeat infringers. If you are a copyright owner or other intellectual property rights owner, or the legal agent of a rights owner, and you believe that any user Contribution on SpottedFashion infringes upon your copyrights or other intellectual property, you may submit a notification pursuant to our DMCA & Intellectual Property Rights Policy [insert link]. You agree that (a) SpottedFashion is an interactive service provider within the meaning of Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (the “CDA”); (b) certain content on SpottedFashion is not created by SpottedFashion and that other users of SpottedFashion may be the sole creators of such content; (c) any claims against SpottedFashion arising out of content that is created by other users would be treating SpottedFashion as a publisher of such content; and (d) claims under the Lanham Act (also known as the Trademark Act of 1946) that are not trademark claims are not intellectual property claims and, thus, SpottedFashion enjoys immunity under the CDA with respect to such claims.
Prohibited Use. You may only use services provided by SpottedFashion as expressly permitted by SpottedFashion. You may not cause harm to our websites or other interactive features provided by SpottedFashion. Specifically, without limitation, you may not: (i) interfere with websites and services provided by SpottedFashion by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, creative derivative works from, reverse engineer, decompile or disassemble any technology used by SpottedFashion; (iii) interfere with, or disrupt the access of any user, host or network including, without limitation, sending a virus, overloading, flooding, spamming, or scripting in such a manner as to interfere with or create an undue burden on SpottedFashion; (iv) use a robot, spider or other device or process to monitory the activity on, or copy pages from, our websites except in the operation or use of an internet “search engine” or similar technology; (v) collect electronic email addresses or other information from third parties by using SpottedFashion; (vi) impersonate another person or entity; (vii) use any meta tags, search terms, key terms, or the like that contain SpottedFashion or Midley Inc.’s names or trademarks or the names or trademarks of third parties without first obtaining a license; (viii) engage in any activity that interferes with another user’s ability to use or enjoy SpottedFashion; or (iv) assist or encourage any third party in engaging in any activity prohibited by these Terms of Service.
Legal Disputes and Arbitration Agreement
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
Initial Dispute Resolution. We are available by email at https://www.SpottedFashion.com/contact/ to address any concerns you may have regarding your use of SpottedFashion. Most concerns may be quickly resolved in this manner. Each of you and Midley agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to section 12(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including its formation, performance and breach), the parties’ relationship with each other and/or your use of SpottedFashion shall be finally settled by binding arbitration administered on a confidential basis by the American Arbitration Association (the “AAA”) in accordance with the provisions of its Consumer Arbitration Rules, excluding any rules or procedures governing or permitting class actions. 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 Service, including, but not limited to any claim that all or any part of these Terms of Service is void or voidable. 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 binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain circumstances.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Class Action and Class Arbitration Waiver. You and Midley each further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and Midley each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 12(B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 12(B), 12(C), and 12(D) by sending written notice of your decision to opt-out to the following address: 757 SE 17th St, #1177, Fort Lauderdale, FL 33316. The notice must be sent within thirty (30) days of registering to use SpottedFashion, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 12(B) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Miami, Florida (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Miami, Florida, for any litigation other than small claims court actions.
Applicable Law. You agree that federal laws and the laws of the State of Florida, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and Midley.
13. Warranty Disclaimer; Limitation on Liability
Disclaimer of Warranties
(i) ALL CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS PROVIDED THROUGH SpottedFashion ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING SpottedFashion, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS AVAILABLE ON OR LINKED TO BY SpottedFashion, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY SITES, OR THAT WE BELIEVE CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF SpottedFashion. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR SpottedFashion SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN these Terms of Service. YOU AGREE THAT YOUR USE OF SpottedFashion WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH SpottedFashion AND YOUR USE THEREOF.
(ii) WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF SpottedFashion CONTENT, THE CONTENT OF ANY WEBSITE LINKED TO SpottedFashion, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON SpottedFashion OR LINKED TO BY SpottedFashion. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF SpottedFashion OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM SpottedFashion, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH SpottedFashion BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA SpottedFashion.
Limited Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF SpottedFashion, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN These Terms of Service, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH These Terms of Service, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
Exceptions to Disclaimers and Liability Limitations. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS in Sections 13(a) and 13(B) MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold us, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of SpottedFashion or any Materials in violation of these Terms of Service or applicable law, or otherwise in connection with the Contributions you submit to SpottedFashion, and/or any breach of your representations and warranties set forth above.
15. Independent Contractors. Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
16. Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
17. Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
18. Assignment. We may assign our rights under these Terms of Service without your approval.
No Third Party Beneficiaries. These Terms of Service constitute an agreement entered into between you and Midley. There are no third party beneficiaries to this agreement.
20. No Modifications by Our Employees or Moderators. If any of our employees or PurseForum moderators (who are not SpottedFashion employees) offers to modify the terms of these Terms of Service, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees, PurseForum moderators, or anyone else purporting to act on our behalf.
21. Contact Information. If you have any questions about these Terms of Service or your account, please contact us.