Nexwear

Terms of Service

These Terms of Service (collectively with our Privacy Policy, “Terms of Service” or “Agreement”) constitute an agreement between you and Valrico LLC, a Nevada limited liability company, d/b/a Nexwear , and its affiliates and subsidiaries, (collectively, “Nexwear”, “we”, “us” or “our”).  The term “you” refers to the person visiting the Site or using the Services. 

Please read this Terms of Service fully and carefully before using www.nexwear.com, our mobile website, our iPhone app, our Android app and all related mobile platforms and online applications (collectively, the “Site”) and the services, features, content or applications we offer (collectively with the Site, the “Services”). These Terms of Service set forth the legally binding terms and conditions for your use of the Site and the Services.

  1. ACCEPTANCE OF TERMS OF SERVICE.

IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SITE.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE SECTION 13 (ARBITRATION AGREEMENT) BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

  1. HEALTH CARE DISCLAIMER.

ALL ASPECTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION ALL CONTENT (AS DEFINED BELOW), ARE FOR INFORMATIONAL PURPOSES ONLY. NO INFORMATION PROVIDED THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT TAKEN TO BE, FACTUAL OR ACCURATE KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. NO ASPECT OF THE SERVICES SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, PROFESSIONAL MEDICAL KNOWLEDGE, ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICES DO NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH PROVIDER, KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. YOU CANNOT USE THE SERVICES AS A DIAGNOSIS, TREATMENT OR PRESCRIPTION. RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. NO PATIENT/DOCTOR RELATIONSHIP OF ANY KIND IS ESTABLISHED THROUGH USE OF THE SERVICES. THE SERVICES ARE NOT A SUBSTITUTE FOR EMERGENCY MEDICAL HELP AND CANNOT BE USED IN THE EVENT OF A MEDICAL EMERGENCY. You should always seek the advice of your physician or other qualified health provider, with any questions you may have regarding personal health or a medical condition, including diagnosis and treatment for your specific medical needs. You should never disregard or delay in seeking professional medical advice due to information you have obtained from the Services.

  1. ELIGIBILITY.

You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. If you are under 18 years of age, your use of the Services is subject to requirements of parental consent, in which case your supervising parent or legal guardian is considered the user under these Terms of Service and is responsible for any and all activity. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party (unless you are a parent or legal guardian using the Services for your minor child).

  1. REGISTRATION.

To sign up for the Services, you must register for an account on the Services (an “Account”) with your email address or log in through your online account with a third party service provider (e.g., Facebook) (“Third Party Account”). You must provide accurate and complete information and keep your Account information updated. You shall not use any other person’s email address to register for an Account. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account by following the instructions on the Site or through the Services.

By using the Services through your Third Party Account, you permit us to access certain information from such Third Party Account for use by the Services. You may control the amount of information that is accessible to us by adjusting your Third Party Account’s settings.

  1. CONTENT.

 

 

 

 

  1. RULES OF CONDUCT.
  1. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
  2. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
  3. impersonates any person or entity, including any of our employees or representatives; or
  1. THIRD PARTY SERVICES.

The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. If you use a third-party website or application and allow them to access your personal information, you do so at your own risk.

  1. Nexwear SUBSCRIPTIONS AND PURCHASES.

You acknowledge that Subscriptions have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. For a given Subscription, you can change your preferences in your Account, where you can adjust, skip or cancel such Subscription. Any changes must be made at least twenty-four (24) hours before your next ship date. Our Site will let you know if you can still modify the next shipment before it ships.

The charge for each Subscription shipment will be automatically billed to the Payment Method used to create your Subscription or as otherwise directed by you. If we are unable to complete your Subscription order with the payment method you used to create your Subscription, you authorize us to update your Subscription with another Payment Method in your Account and to charge the Payment Method for your Subscription order.

Your Subscription will remain in effect until it is cancelled. You may cancel at any time by going to your Account.  We may, at our sole discretion, terminate your Subscriptions at any time without notice. If we do so, you will only be charged for orders that have been shipped to you.

We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are fully earned and non-refundable to the fullest extent of the law. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

  1. WARRANTY DISCLAIMER.
  1. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE SITE, SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. NEXWEAR, ON BEHALF OF ITSELF AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, PARTNERS, SUCCESSORS, ASSIGNS AND CONTENT PROVIDERS (COLLECTIVELY THE “NEXWEAR PARTIES”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE; (B) DOES NOT WARRANT THAT THE SITE, SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE OPERATION OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE OR SECURE; (C) DOES NOT WARRANT THE SITE, SERVICES OR CONTENT WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY WARRANTIES REGARDING THE USE OF THE SITE, SERVICES OR CONTENT WITH RESPECT TO THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOUR USE OF THE SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN RISK.
  2. THE DISCLAIMER OF WARRANTIES SET FORTH IN THIS SECTION IS PART OF THE BARGAIN BETWEEN YOU AND NEXWEAR.
  1. NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT THE NEXWEAR PARTIES’ WARRANTIES, TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL IMPLIED WARRANTY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
  2. INDEMNIFICATION.

 

  1. You shall defend, indemnify, and hold harmless the Nexwear Parties from all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liabilities, claims, and expenses, including reasonable attorneys’ and accounting fees, that arise from your User Content, your purchase of any products or services in connection with the Site and/or Services, your misuse of the Services, your violation of these Terms of Service, or your infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Nexwear Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact.
  2. You hereby agree to release the Nexwear Parties from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including Payment Processors, Third Party Accounts, and other users of the Site and/or Services) in connection with the Site and/or Services or any product or service purchased by you on the Site and/or Services. In addition, you waive California Civil Code Section 1542 and any other applicable law or statute, which says, in substance: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY 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 RELEASED PARTY."

 

  1. LIMITATION OF LIABILITY.
  2. THE NEXWEAR PARTIES SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SITE OR SERVICES, OR ANY OTHER SUBJECT MATTER OF THESE TERMS OF SERVICE, FOR:
    1. ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE NEXWEAR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES);
    2. THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES;
    3. ANY AMOUNTS IN EXCESS OF US$500.00 IN THE AGGREGATE FOR ALL CLAIMS FROM A GIVEN USER WITH RESPECT TO THE SITE AND/OR SERVICES; OR
    4. ANY MATTERS BEYOND THE NEXWEAR PARTIES’ REASONABLE CONTROL.
  3. THE NEXWEAR PARTIES SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF YOUR USER CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. THE NEXWEAR PARTIES ASSUME NO FINANCIAL LIABILITY FOR LOSSES INCURRED DUE TO SERVICE INTERRUPTIONS WHICH ARE NOT THE DIRECT RESPONSIBILITY OF THE NEXWEAR PARTIES.

 

  1. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS OF SERVICE LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS OF SERVICE. NOTHING IN THESE TERMS OF SERVICE AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.

 

  1. THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY. THIS SECTION 12 DOES NOT APPLY TO CLAIMS OF FRAUD OR PERSONAL INJURY.

 

  1. EACH PROVISION OF THESE TERMS OF SERVICE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF SERVICE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  2. ARBITRATION AGREEMENT.Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

  1. GOVERNING LAW AND JURISDICTION.

These Terms of Service shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the conflict of laws provisions thereof, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Clark County, Nevada.

  1. MODIFICATION.

We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.

  1. DMCA COPYRIGHT POLICY.
  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
  1. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Nexwear is capable of finding and verifying its existence;
  2. Contact information about the notifier including address, telephone number and, if available, e-mail address;
  3. A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; andA statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

(c)   Please contact the Designated Agent to Receive Notification of Claimed Infringement for Nexwear at Feedback@nexwear.com or at:

Nexwear
1434 E. Lake Mead Parkway

Henderson, NV 89015

1-866-420-NXWR

  1. INTERNATIONAL USE.

The Site can be accessed from countries other than the United States, but may contain products and/or references that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use the Site and/or Services outside the United States you are responsible for complying with your local laws and regulations.

  1. MISCELLANEOUS.
  1. Notices to you may be made via either email or regular mail to the address in Nexwear’s records. By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy, https://nexwear.com/pages/privacy-policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. All notices from Nexwear intended for receipt by you shall be deemed delivered and effective when sent to the email address provided by you during the registration process or when posted to and made available to you on the Services. If you change the email address provided in connection with your registration to access and use the Services, you must update your address in accordance with the procedures set forth on Services.
  2. Any Notice from you to us shall be sent in writing (i) to our mailing address at 1434 E. Lake Mead Parkway Henderson NV 89015, or (ii) by email to Feedback@nexwear.com.  All notices sent to us electronically by email shall be deemed to have been duly given when receipt is electronically confirmed.
  3. Unless otherwise specified in these Term of Service, all notices under these Terms of Service shall be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
  1. Contact and Disclosures.You may contact us at Feedback@nexwear.comor the following address: 1434 E. Lake Mead Parkway Henderson NV 89015. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.