Terms of Use

HIGG.COM TERMS OF USE

Last Updated: July 1, 2020

These Terms of Use(“Terms”) apply to your access to and use of the https://higg.com/ (the“Site”) provided by Higg Co LLC and/or its affiliates(“Higg Co” or “we”). These Terms do not apply to your access and use of any services, platforms, APIs, tools, or other materials provided by Higg Co (collectively, Higg Co’s “Services”). Your use of any such Services will be governed by a separate agreement or terms of use between you and Higg Co. If there is a conflict between these Terms and such separate agreement or terms, the separate agreement or terms will control for that conflict. BY ACCESSING OR USING OUR SITE, YOU AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 12. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUR SITE.

If you have any questions about these Terms or our Site, please contact us at https://apparelcoalition.zendesk.com/hc/en-us/requests/new

For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.

1 Eligibility

You must be at least 18 years of age to use our Site.If you are under 18 years of age (or the age of legal majority where you live), you may not use our Site. If you use our Site on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf,and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.

2 User Accounts

You may need to register for an account to access some portions of our Site in connection with your use of the Services. You understand and acknowledge that the terms governing your registration and use of an account will be governed by a separate agreement between you and Higg Co.

3 Prohibited Conduct

(a) You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Site. You will not:

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
  • Sell, resell or commercially use our Site;
  • Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Site, except as expressly permitted by us or our licensors;
  • Modify our Site, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Site;
  • Use our Site other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Site or that could damage, disable, overburden or impair the functioning of our Site in any manner;
  • Reverse engineer any aspect of our Site or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Site;
  • Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Site;
  • Develop or use any applications that interact with our Site without our prior written consent;
  • Bypass or ignore instructions contained in our robots.txt file; or
  • Use our Site for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

(b) Enforcement of this Section 3 is solely at Higg Co’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 3 does not create any private right of action on the part of any third party or any reasonable expectation that the Site will not contain any content that is prohibited by such rules.

4 Ownership; Limited License

The Site, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Higg Co or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Site are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable right to access and use our Sitefor your own personal, noncommercial use. Any use of the Site other than as specifically authorized herein, without our prior written permission, is strictly prohibited,will terminate the license granted herein and violate our intellectual property rights.

5 Trademarks

Higg Co and our logos, our product or service names, our slogans and the look and feel of the Site are trademarks of Higg Co or others and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Site are the property of their respective owners. Reference to any products, Site, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.

6 Feedback

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Higg Co or our Site (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in Higg Co’s sole discretion. You understand that Higg Co may treat Feedback as nonconfidential.

7 Third-Party Content

We may provide information about third-party products, sites, activities or events, or we may allow third parties to make their content and information available on or through the Site(collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Higg Co does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

8 Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Higg Co and our licensors, subsidiaries,and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Higg Co Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to: (a) your access to or use of the Site; (b) your Feedback; or (c) your violation of these Terms. You agree to promptly notify Higg Co Parties of any third-party Claims, cooperate with Higg Co Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the Higg Co Parties will have control of the defense or settlement, at Higg Co’s sole option, 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 Higg Co or the other Higg Co Parties.

9 Disclaimers

YOUR USE OF OUR SITE IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SITE AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND HIGG CO EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, HIGG CO DOES NOT REPRESENT OR WARRANT THAT OUR SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE HIGG CO ATTEMPTS TO MAKE YOUR USE OF OUR SITE AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SITE OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE.

10 Limitation of Liability

(a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HIGG CO AND THE OTHER HIGG CO 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 HIGG CO OR THE OTHER HIGG CO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) THE TOTAL LIABILITY OF HIGG CO AND THE OTHER HIGG CO PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SITE, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO $100.

(c) THE LIMITATIONS SET FORTH IN THIS SECTION 10 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF HIGG CO OR THE OTHER HIGG CO 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 Transfer and Processing Data

In order for us to provide our Site, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law as set forth in our Privacy Policy.

12 Dispute Resolution; Binding Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH HIGG CO AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.

You and Higg Co agree that any dispute arising out of or related to these Terms or our Site (“Dispute”) is personal to you and Higg Co and that any Dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

Any controversy arising under or related to these Terms, and any Disputed claim by any party against another under these Terms, excluding small claims Disputes in which you or Higg Co seek to bring an individual action in small claims court located in the county of your residence or Disputes in which you or Higg Co seek injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, shall be settled by arbitration in accordance with the then existing Commercial Arbitration Rules of the International Chamber of Commerce (the “Rules”). YOU AND HIGG CO WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO HAVE ANY OTHER DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SITE, INCLUDING CLAIMS RELATED TO PRIVACY AND DATA SECURITY, RESOLVED IN COURT. Upon request by a party, arbitration will be by a panel of three (3) arbitrators within thirty (30) days of such arbitration request. Each party shall select one arbitrator, and the final arbitrator shall be appointed by the arbitrators designed by each party. The arbitration shall be conducted in English. Judgment upon the award rendered by the panel shall be final and non-appealable and may be entered in any court having jurisdiction thereof. In order to conduct discovery, and in addition to the discovery provisions provided under the Rules, the parties expressly incorporate into any arbitration occurring under this Agreement the discovery rules provided for in the Federal Rules of Civil Procedure of the United States of America. Any arbitration shall be held in San Francisco, CA, unless the parties hereto mutually agree in writing to another place. Notwithstanding the foregoing, nothing in this provision shall be construed to bar a party from seeking equitable relief in order to preserve the status quo or prevent irreparable harm. Any Dispute under this Section 12 must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Higg Co will not have the right to assert the claim.

If any portion of this Section 12 is found to be unenforceable or unlawful for any reason: (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 12 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 12; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 12 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 12 will be enforceable.

13 Governing Law and Venue

Any Dispute arising from these Terms and your use of the Site will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California 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 Contra Costa County, California.

14 Modifying and Terminating our Site

We reserve the right to modify our Site or to suspend or stop providing all or portions of our Site at any time. You also have the right to stop using our Site at any time. We are not responsible for any loss or harm related to your inability to access or use our Site.

15 Additional Terms and Amendments

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Site or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Site after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Site.

16 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.

17 Miscellaneous

(a) The failure of Higg Co to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties with respect to the subject matter hereof. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, 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. You agree that communications and transactions between us may be conducted electronically.

(b) Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Site of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

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