Affinity TECHNOLOGY TERMS OF SERVICE

Last Updated: November 21, 2016

These Terms of Service (“Terms”) apply to your access to and use of the website and other online products and services (collectively, our “Services”) provided by Affinity Technology, Inc. (“Affinity Technology,” “our” or “we”). If you access or use our Services, you acknowledge and agree that you have read all of the terms and conditions of these Terms, and you agree to be legally bound by all of the terms and conditions of these Terms, including the mandatory arbitration provision and class action waiver in Section 13.

If you have any questions about these Terms or our Services, please contact us at hello@tryaffinity.com.

You must be at least 13 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on behalf of that person or entity; and the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

1 Description of the Services

We have created a platform to help you shop for the best fashion from across the web. Our platform analyzes your personal style and curates a shopping experience just for you. By taking our style quiz, and liking or rejecting different fashion items across our website, our platform learns about your personal style and continuously improves its recommendations for you. Once you create a profile and start interacting with the platform, we will personalize your shopping experience to your tastes and preferences; and we will regularly send you emails with fashion we think you'll love.

2 User Accounts and Account Security

You must register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission.

3 Privacy

Please refer to our Privacy Policy https://www.tryaffinity.com/privacy for information about how we collect, use and disclose information about you.

4 User Content

Our Services may allow you and other users to create, post, store and share content including text, style preferences and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content as between you and Affinity Technology.

You may not create, post, store or share any User Content that:

  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any private or personal information of a third party without such third party’s consent;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Affinity Technology or others to any harm or liability of any type.

You grant Affinity Technology a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content, in all media formats and channels now known or later developed, without compensation to you.

Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

5 Conduct

By using our Services, you agree not to:

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Use or attempt to use another user’s account without authorization from that user and Affinity Technology;
  • Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services, or that could damage, disable, overburden or impair the functioning of our Services in any manner;
  • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
  • Attempt to circumvent any content-filtering techniques we employ, or attempt to access any feature or area of our Services that you are not authorized to access;
  • Develop or use any third-party application that interacts with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
  • Bypass or ignore instructions contained in our robots.txt file, accessible at https://www.tryaffinity.com/robots.txt, that controls automated access to portions of our Services; or
  • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

6 Limited License; Copyright and Trademark

Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained in our Services that are owned by or licensed to Affinity Technology (collectively, the “Affinity Technology Content”) are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Affinity Technology and our licensors reserve all rights in and to our Services and the Affinity Technology Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Affinity Technology Content for your own personal use. Unless expressly permitted, you agree not to (a) sell, resell or commercially use our Services or Affinity Technology Content; (b) copy, reproduce, distribute, publicly perform or publicly display Affinity Technology Content, except as expressly permitted by us or our licensors; (c) modify the Affinity Technology Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Affinity Technology Content; (d) use any data mining, robots or similar data gathering or extraction methods; or (e) use our Services or Affinity Technology Content other than for their intended purposes.

Any use of our Services or Affinity Technology Content other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited and will terminate the license granted by these Terms.

7 Feedback

Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Affinity Technology or the Services (collectively, “Feedback”) is non-confidential and will become the sole property of Affinity Technology. We will own exclusive rights, including, without limitation, all intellectual property rights in and to Feedback; and we will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

8 Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Affinity Technology and our officers, directors, agents, partners and employees (individually and collectively, the “Affinity Technology Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services; (b) your User Content; (c) your actual or alleged violation of these Terms by you; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify Affinity Technology Parties of any third-party Claims, cooperate with Affinity Technology Parties in defending such Claims, and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Affinity Technology Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Affinity Technology or the other Affinity Technology Parties.

9 Disclaimers

We do not control, endorse or take responsibility for any User Content or third-party content available on, or linked to, our Services.

Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Affinity Technology does not represent or warrant that our Services are accurate, complete, reliable, current or error free.

While Affinity Technology attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

10 Limitation of Liability

Affinity Technology and the other Affinity Technology Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Affinity Technology or the other Affinity Technology Parties have been advised of the possibility of such damages.

The total liability of Affinity Technology and the other Affinity Technology Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid by you, if any, to access or use our Services.

The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Affinity Technology or the other Affinity Technology Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages; so the above limitations or exclusions may not apply to you.

11 Release

To the fullest extent permitted by applicable law, you release Affinity Technology and the other Affinity Technology Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542, as well as any other statute or common law principles that would otherwise limit the coverage of this release, to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

12 Transfer and Processing Data

By accessing or using our Services, you consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.

13 Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Affinity Technology, and limits the manner in which you can seek relief from us.

Except for small claims disputes in which you or Affinity Technology seek to bring an individual action in small claims court located in the county of your billing address, or disputes in which you or Affinity Technology seek injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Affinity Technology waive your rights to a jury trial or to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Santa Clara County, California, in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS") which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS, or you waive your opportunity to read the rules of JAMS and forego any claim that the rules of JAMS are unfair or should not apply for any reason.

You and Affinity Technology agree that any dispute arising out of or related to these Terms or our Services is personal to you and Affinity Technology and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

You and Affinity Technology agree that these Terms affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. You and Affinity Technology agree that for any arbitration you initiate, you will pay the filing fee and Affinity Technology will pay the remaining JAMS fees and costs. For any arbitration initiated by Affinity Technology, Affinity Technology will pay all JAMS fees and costs. You and Affinity Technology agree that the state or federal courts of the State of California and the United States sitting in Santa Clara County, California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Affinity Technology will not have the right to assert the claim.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 13 by emailing us at: hello@tryaffinity.com. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 14.

14 Governing Law and Venue

THESE TERMS AND YOUR ACCESS TO AND USE OF OUR SERVICES WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAW RULES OR PRINCIPLES (WHETHER OF CALIFORNIA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. ANY DISPUTE BETWEEN THE PARTIES THAT IS NOT SUBJECT TO ARBITRATION OR CANNOT BE HEARD IN SMALL CLAIMS COURT WILL BE RESOLVED IN THE STATE OR FEDERAL COURTS OF CALIFORNIA AND THE UNITED STATES, RESPECTIVELY, SITTING IN SANTA CLARA COUNTY AND CALIFORNIA.

15 Changes to these Terms

We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account, providing notice on your mobile device, or otherwise notifying you through the Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.

16 Termination

We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.

17 Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

18 Electronic Communications

By creating an Affinity Technology account, you also consent to receive electronic communications from Affinity Technology (e.g., via email or by posting notices on our Services). These communications may include notices about your account (e.g., new fashion recommendations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.

19 Notice for California Users

If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.

20 Miscellaneous

These Terms constitute the entire agreement between you and Affinity Technology relating to your access to and use of our Services. The failure of Affinity Technology to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided in these Terms, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.