Swap & Strut

Terms & Conditions

Effective Date:

August 1, 2020.

The following Terms of Service (“Terms”) between you (“you” or “your”) and Swap & Strut LLC (“we,” “our,” “us,” or “SS”) describes the terms and conditions on which you may access and use the SS website located at swapandstrut.com (the “Site”) and related products & services including SS’s product sale services (together with the Site, as defined below, the “Services”). These Terms also apply to sales, which are part of the Services. By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.

PLEASE READ THESE TERMS CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING “I AGREE” OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.

Notice of Agreement to Arbitrate and Class Action Waiver

By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in Section 8 of these Terms below.

a. About the Services

b. Sale of Products

c. Special Trial Programs

d. Use of the Services

e. Intellectual Property

f. Termination

g. Disclaimer of Warranties; Limitation of Liability

h. Miscellaneous

1. ABOUT THE SERVICES

A. Introduction

Through the Services, we aim to give you access to gorgeous clothing and accessories, style advice and other content to help you decide which items are perfect for you.

B. Mobile Charges

To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.

C. Eligibility

Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase any clothing or accessories (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the rental or purchase of any Products, including all legal liability he or she may incur.

D. Modification of the Services or the Terms

SS may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, SS will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to SS upon registration.

2. SALE OF PRODUCTS

A. General Conditions

The Services include the sale of Products. This Section 2(A) sets out terms and conditions that apply to your purchase of any Product.

18 YEARS OR OLDER. Products may be purchased for use by individuals under 18 years of age, but we sell only to adults, who may purchase the Products with a payment card or other approved payment method. By clicking agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting or purchasing the Products as described in these Terms.

LIMITS. You acknowledge and agree that we may place limits on the purchase of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit any sales of Products for any reason in our sole discretion, including but not limited to availability and geographic concerns.

DELIVERY. Your Products may be ordered and couriered to you on the same day for certain orders placed by 9 A.M. for delivery in Chicago, subject to the additional delivery charge specified on the Site. Otherwise, all deliveries outside of Chicago will be through SS’s shipping partners, which may change from time to time at SS’s discretion. The shipping method used will be at the discretion of SS.

COLLECTIONS. If you do not pay the amounts you owe to SS when due, then SS will need to institute collection procedures. You agree to pay SS’s costs of collection, including without limitation reasonable attorneys’ fees.

COMMUNICATIONS. You consent to receive communications from us, including email, text messages, calls, and push notifications, including for the purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, and providing other information. We may contact you by telephone calls or text messages, including by an automatic telephone dialing system, at any of the telephone numbers provided by you. Standard message and data rates charged by your mobile carrier may apply to the text messages we send you. You may opt out of receiving communications by following the unsubscribe procedures we provide to you. In the case of text messages, you may opt out by replying “STOP” to a text message you receive from us or by emailing hello@swapandstrut.com. You acknowledge that opting out of receiving communications may impact your use of the Services.”

B. Sales

The following additional conditions apply to the sale of any Product.

PRODUCTS ARE MADE-TO- ORDER; ALL SALES ARE FINAL AND “AS IS.” You acknowledge and agree that only those Products designated by us on the Site as available for purchase are eligible for purchase by you. EXCEPT FOR INTIMATES, SHAPEWEAR AND BEAUTY PRODUCTS. SS will inspect the Products before they are delivered to you. However, all Products are sold on an “as is” basis, without any warranty whatsoever, and all Product sales are final.

PURCHASE PRICE. The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges listed on the Site in connection with your purchase of the Products. Purchase Price is as listed on the SS website at the time of purchase, and is subject to change. SS reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order for a Product, you hereby authorize SS to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Purchase Prices exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by SS, shall be paid by you to SS in connection with your purchase order. Purchase orders are final and cannot be cancelled.

C. Gift Cards

I. GENERAL CONDITIONS

The following additional terms and conditions apply to the sale, use and redemption of SS physical gift cards and electronic-only “digital” gift cards and gift credits (collectively, “Gift Cards”). Purchase and use of a Gift Card constitutes acceptance of these terms. In addition to the terms in this Section the purchase, use and redemption of Gift Cards is considered part of the Services subject to these Terms generally.

II. REDEMPTION AND USE.

Gift Cards may be purchased online. Gift Cards are redeemable only for eligible services and merchandise through swapandstrut.com or SS retail locations.

Limits may apply to Gift Card redemption and use. A Gift Card cannot be used to purchase other Gift Cards. When a Gift Card is redeemed, the value of the rental or purchase plus any shipping/handling fees and sales tax will be deducted from the currently available Gift Card balance.

III. ADDITIONAL TERMS FOR DIGITAL GIFT CARDS.

Digital gift cards are only issued electronically; no physical card will be provided. The digital gift card number will be delivered to the recipient’s email address that purchaser provides at time of purchase of the digital gift card. Purchaser is responsible for providing an accurate and deliverable recipient email address. Recipient will usually receive a digital gift card via email within 24 hours, or on the delivery date the purchaser chooses. Digital gift cards may be redeemed by providing the digital card number at the time of checkout online or at a SS retail location.

IV. EXPIRATION AND FEES.

The Gift Cards do not expire, and are not subject to any fees. Gift Cards are not redeemable or exchangeable for cash (except as required by law). Gift Cards cannot be reloaded and are not refundable. Gift Cards cannot be transferred for value.

V. LOST, STOLEN, OR DAMAGED CARDS; UNAUTHORIZED USE.

You should treat your Gift Card like cash and protect it accordingly. Title to and risk of loss for Gift Cards passes to the purchaser upon sale. SS reserves the right to refuse to accept Gift Cards that SS believes were fraudulently obtained.

SS is not responsible if a Gift Card is lost, stolen, destroyed, damaged, or used without permission. Gift Cards will be replaced if lost, stolen or damaged only with proof of purchase and only for the value shown on SS’s records. SS is not responsible if your Gift Card is used without your permission.

VI. LIMITATION OF LIABILITY.

IN ADDITION TO THE LIMITATIONS OF LIABILITY STATED IN SECTION 7(C), IN THE EVENT THAT SS IS FOUND LIABLE TO YOU FOR A CLAIM ARISING FROM A GIFT CARD, YOUR SOLE REMEDY WILL BE TO RECOVER ACTUAL AND DIRECT DAMAGES WHICH SHALL NOT EXCEED THE LAST BALANCE HELD ON YOUR GIFT CARD.

VII. CUSTOMER SERVICE; CHECK BALANCE.

For assistance or to check Gift Card balance, email hello@swapandstrut.com.com.

3. Use of the Services

A. SS Content

CONTENT PROVIDED “AS IS.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“SS Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The SS Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any SS Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the SS Content.

UPDATES We may update the SS Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to hello@swapandstrut.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.

B. Third Party Content

LINKS TO THIRD-PARTY WEBSITES. The Services may contain links or references to non-SS websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and SS is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from SS, and SS has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that SS endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.

C. Acceptable Use Policy

USE OF SS CONTENT. No part of the Services, including the SS Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that SS authorizes you to view, copy, download, and print SS Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the SS Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the SS Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the SS Content.

USE OF THE SERVICES. You may not use the Services to: (i) transmit any content, information or other materials that are, or which SS considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a SS representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent’s consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.

You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.

INDEMNIFICATION FOR BREACH. By using the Services, you agree to indemnify, hold harmless and defend SS and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.

D. Your Content

If you post, upload or make available to SS or the Services, or otherwise submit to or through SS as part of your use of the Services, including the Site, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to SS a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, including Section 4(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize SS to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.

E. Your Account

Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify SS promptly of any unauthorized use of your account or password.

F. Delays

There may be delays, omissions, or inaccuracies in the Services, including the SS Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.

G. Job Postings

SS may list open employment positions on or through the Services. These postings are for informational purposes only and are subject to change without notice. You should not construe any information on or made available through the Services as an offer for employment or promotion or solicitation for employment not authorized by the laws and regulations of your locale.

5. INTELLECTUAL PROPERTY

A. Ownership of the Services

The Services, including the SS Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of SS and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “Swap & Strut” and the SS logo are registered trademarks of Swap & Strut, LLC, under the applicable laws of the United States and/or other countries. Other SS product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of SS and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. SS and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.

Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any SS Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of SS or such third party that may own such SS Content.

B. Services License

Subject to your compliance with these Terms, SS grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.

C. Feedback

By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that SS may use your Feedback without restriction or obligation to you or any third party.

6. TERMINATION

A. Termination By You

You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at hello@swapandstrut.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.

B. Termination By SS

Any violation of these Terms, including any of the prohibitions in Section 4(C), may result in suspension or termination of your access to the Services and/or removal of Your Content. SS may also terminate your account if SS determines that your conduct poses a risk or liability to SS, or for any other reason as determined by SS in its sole discretion.

C. Effects of Termination

In each of these cases, the Terms will terminate, including your license to use the Services, except that the following sections shall continue to apply: 2(A) (Collections), 2(B) (Rental Fee, Late Fees, Lost Return Packaging), 2(C), 3(A) (Failure to Pay Fees), 4(A)-(D), 5(A), 5(C) (Acknowledgment), 5(D), 6(C), and 7-9, including the mandatory arbitration and class-action waiver provisions.

7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

A. Limited Warranties

The limited warranties set out in Section 2(B) for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by SS in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms.

Your sole and exclusive remedy and SS’s sole and exclusive liability for a breach by SS of the limited warranties set out in Section 2(B) shall be, at SS’s option, SS’s use of its commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of your Rental Fee, as applicable (excluding insurance and delivery charges).

B. Disclaimer of Warranties

EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, SS DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE SS CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.

C. Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL SS BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF SS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 7(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.

9. MISCELLANEOUS

JURISDICTIONAL ISSUES. SS makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that SS intends to announce or make available such products or services to the general public, or in your country. Contact SS at hello@swapandstrut.com to determine which products and services may be available to you.

EXPORT LAWS. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the SS Content, or any part thereof, in any way, in violation of United States law.

GOVERNING LAW AND VENUE. These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in Cook County, Illinois, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.

ENTIRE AGREEMENT. These Terms are the entire agreement between you and SS relating to the subject matter herein and shall not be modified except by SS in accordance with these Terms, or as otherwise agreed in writing by you and SS. No employee, agent or other representative of SS has any authority to bind SS with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.

SEVERABILITY AND WAIVER. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

ASSIGNMENT. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. SS may assign these Terms at any time without notice to you.

FORCE MAJEURE. SS will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond SS’s reasonable control.

CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to SS at hello@swapandstrut.com or Swap & Strut, LLC, PO BOX 57816 Chicago, IL 60657.

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