State of Matter™ Terms of Service
Last updated: September 11, 2020
ITOCHU Prominent USA LLC, the owner and operator of the State of Matter™ brand (referred to herein as "we", "us" or "State of Matter™") operates this website, https://stateofmatterapparel.com, and related features or services available on that website (collectively, this "Website"). The words “you,” and “your” refer to the individual that accesses or uses this Website.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THIS WEBSITE. YOUR USE OF THIS WEBSITE OR YOUR CLICKING “ACCEPT” WHEN PROMPTED TO DO SO, CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF AND AGREEMENT TO THE FOLLOWING TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, DO NOT USE THIS WEBSITE.
THESE TERMS OF SERVICE CONTAIN A CLASS ACTION WAIVER AND MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
State of Matter™ reserves the right to modify these Terms of Service at any time. Your continued use of this Website following the posting of any changes to the Terms of Service means that you accept and agree to abide by such changes. If you do not agree to any revised Terms, you should discontinue your use of the Services. State of Matter™ expressly reserves the right to deny or restrict access to the Website for failure to follow the terms set forth herein.
State of Matter™ reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Website is void where prohibited. If you choose to access the Website from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
Products, Content and Specifications: All features, content, specifications, products and prices of products and services described or depicted on this Website are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services in this Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Website. By placing an order, you represent that the products ordered will be used only in a lawful manner.
Shipping Limitations: When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained on this Website. All purchases from this Website are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from this Website pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
Accuracy of Information: We attempt to ensure that information on this Website is complete, accurate and current. Despite our efforts, the information on this Website may occasionally be inaccurate, incomplete or out of date. We make no representation or warranty as to the completeness or accuracy of any information on this Website. For example, products included on the Website may be unavailable, may have different attributes than those listed, and/or may actually carry a different price than that stated on the Website. In addition, we may make changes to information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
Use of this Website: The Website design and all text, graphics, information, content, and other material displayed on or that can be downloaded from this Website are either the property of, or used with permission by, State of Matter™ and are protected by copyright, trademark and/or other laws and may not be used except as permitted in these Terms of Service or with the prior written permission of the owner of such material. You may not modify the information or materials located on this Website in any way or reproduce or publicly display, perform, or distribute or otherwise use any such materials for any public, commercial or other purpose. Any unauthorized use of any such information or materials may violate copyright laws, trademark laws, laws of privacy and publicity, and/or other laws and regulations. Additionally, any scraping, automated access, or other unauthorized access to, and storage of, the Website is prohibited.
Intellectual Property Rights: This Website is protected by copyrights, trademarks and/or other proprietary rights, and except as specifically provided in these Terms of Service, your use of the Website and its services shall be governed and constrained by applicable copyright, trademark and other intellectual property laws, in addition to the Terms of Service. You specifically agree that State of Matter™ or its third-party licensors’ own all intellectual property rights in and to the content offered on the Website (regardless of whether those rights are registered). Nothing contained on this Website grants or should be construed as granting, by implication, estoppel, or otherwise, any license or other right to use any trademarks, trade names, service marks or logos displayed on this Website without our prior written approval or the prior written approval of such third party owner. All rights are herein expressly reserved.
COPYRIGHT INFRINGEMENT NOTIFICATION: If you believe that your work has been used on Website in a way that constitutes copyright infringement, you should send a written notice, in accordance with the provisions of the Digital Millennium Copyright Act ("DMCA") to our Designated Copyright Agent, who can be reached as follows:
Pursuant to 17 U.S.C. § 512(c), to be effective, the Notification must include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
This process only relates to reporting a claim of copyright infringement. Messages related to other matters will not receive a response through this process. Please note that under Section 512(f) of the DMCA, any person who knowingly and materially misrepresents that content is infringing may be subject to liability. If you are unsure whether content on the Website infringes your copyright, you may wish to contact an attorney prior to sending notice.
Third Party Links: From time to time, this Website may contain links to websites that are not owned, operated or controlled by us. All such links are provided solely as a convenience to you. If you use these links, you will leave this Website. We are not responsible for any content, materials or other information located on or accessible from any other website. We do not endorse, guarantee, or make any representations or warranties regarding any other website, or any content, materials or other information located or accessible from such websites, or the results that you may obtain from using such websites. If you decide to access any other website linked to or from this Website, you do so entirely at your own risk.
Inappropriate Material: You are prohibited from posting or transmitting any unlawful, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that we may have at law or in equity, if we reasonably determine that you have violated or are likely to violate the foregoing prohibitions, we may take any action we reasonably deem necessary to cure or prevent the violation, including without limitation, the immediate removal from this Website of the related materials. We will fully cooperate with any law enforcement authorities, court orders, or subpoenas requesting or directing us to disclose the identity of anyone posting such materials.
DISPUTE RESOLUTION, ARBITRATION, CLASS ACTION WAIVER, GOVERNING LAW AND JURISDICTION
PLEASE READ THIS FOLLOWING CLAUSE CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
- Initial Dispute Resolution: State of Matter™ is available by email at email@example.com to address any concerns you may have regarding the use of the Website or your purchase from State of Matter™. Most concerns may be quickly resolved in this manner. Each of you and State of Matter™ 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.
THE PARTIES UNDERSTAND THAT, IN LIGHT OF THIS MANDATORY ARBITRATION PROVISION, THEY ARE WAIVING THEIR RIGHTS TO SUE IN COURT AND HAVE THEIR DISPUTES RESOLVED BY A JUDGE OR JURY TRIAL.
THE ARBITRATOR SHALL BE SELECTED PURSUANT TO THE JAMS RULES AND PROCEDURES. THE ARBITRATOR SHALL APPLY NEW YORK LAW CONSISTENT WITH THE FEDERAL ARBITRATION ACT AND APPLICABLE STATUTES OF LIMITATIONS, AND SHALL HONOR CLAIMS OF PRIVILEGE RECOGNIZED AT LAW. IN THE EVENT THAT THE CLAIMANT IS ABLE TO DEMONSTRATE THAT THE COSTS OF ARBITRATION WILL BE PROHIBITIVE AS COMPARED TO THE COSTS OF LITIGATION, STATE OF MATTER WILL PAY AS MUCH OF THE CLAIMANT’S FILING AND HEARING FEES IN CONNECTION WITH THE ARBITRATION AS THE ARBITRATOR DEEMS NECESSARY TO PREVENT THE ARBITRATION FROM BEING COST-PROHIBITIVE. IF ANY PART OF THIS ARBITRATION PROVISION IS DEEMED TO BE INVALID, UNENFORCEABLE OR ILLEGAL (OTHER THAN THAT CLAIMS WILL NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS), OR OTHERWISE CONFLICTS WITH THE JAMS RULES AND PROCEDURES, THEN THE BALANCE OF THIS ARBITRATION PROVISION SHALL REMAIN IN EFFECT AND SHALL BE CONSTRUED IN ACCORDANCE WITH ITS TERMS AS IF THE INVALID, UNENFORCEABLE, ILLEGAL OR CONFLICTING PROVISION WERE NOT CONTAINED HEREIN. IF, HOWEVER, THE PORTION THAT IS DEEMED INVALID, UNENFORCEABLE OR ILLEGAL IS THAT CLAIMS WILL NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION SHALL BE NULL AND VOID, AND NEITHER CLAIMANT NOR STATE OF MATTER SHALL BE ENTITLED TO ARBITRATE THEIR DISPUTE.
- CLASS ACTION AND CLASS ARBITRATION WAIVER: YOU AND STATE OF MATTER™ EACH FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND YOU AND STATE OF MATTER EACH EXPRESSLY WAIVE YOUR RESPECTIVE RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. 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 (B) SHALL BE DEEMED NULL AND VOID IN ITS ENTIRETY AND THE PARTIES SHALL BE DEEMED TO HAVE NOT AGREED TO ARBITRATE DISPUTES AND SUCH CLASS ACTION SHALL PROCEED CONSISTENT WITH SECTION (f) BELOW.
- Exception – Litigation of Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also 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 (b) and (c) by sending written notice of your decision to opt-out to the following email: firstname.lastname@example.org. The notice must be sent within thirty (30) days of your use the Website or your purchase from State of Matter™, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, State of Matter™ also will not be bound by them.
- Exclusive Venue for Litigation: To the extent that the arbitration provisions set forth in Section (b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in New York (except for small claims actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in New York for any litigation other than small claims court actions.
- Applicable Law: You agree that federal laws and the laws of the State of New York, 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 State of Matter™. A printed version of these Terms of Service shall be admissible in judicial and administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
DISCLAIMERS: YOUR USE OF THIS WEBSITE IS AT YOUR RISK. THE MATERIALS AND SERVICES PROVIDED IN CONNECTION WITH THIS WEBSITE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE MATERIALS OR SERVICES ON OR THROUGH THIS WEBSITE. THE MATERIALS AND SERVICES ON OR THROUGH THIS WEBSITE MAY BE OUT OF DATE, AND WE DO NOT MAKE ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THIS WEBSITE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURES, DISTRIBUTORS AND SUPPLIERS, IF ANY.
LIMITATIONS OF LIABILITY: We assume no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing this Website or your downloading of any materials, from this Website. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS, RETAIL PARTNERS OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THIS WEBSITE BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS WEBSITE, ANY WEBSITES LINKED TO THIS WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED AT ANY OR ALL SUCH WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NEW JERSEY: (A) LIMITATIONS ON LIABILITY FOR INTENTIONAL OR RECKLESS ACTS AND GROSS NEGLIGENCE ARE PROHIBITED, AND DO NOT APPLY; AND (B) NOTHING HEREIN EXCLUDES ANY CLAIM FOR ATTORNEY’S FEES, COURT COSTS OR OTHER DAMAGES IF MANDATED BY STATUTE.
IN THE EVENT OF ANY PROBLEM WITH THIS WEBSITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEBSITE. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THIS WEBSITE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER'S OR SUPPLIER'S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THIS WEBSITE.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website, its services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred; provided, however, that this limitation shall not apply to the raising of any defense or counterclaim by a New Jersey resident.
NOTICE TO CALIFORNIA RESIDENTS: BY USING THE WEBSITE, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
If the Website is at any time deemed an electronic commercial service (as defined under California Civil Code Section 1789.3), California residents are entitled to the following specific consumer rights information:
The provider of the Website is:
ITOCHU Prominent USA LLC
1411 Broadway, 6th Floor
New York, New York 10018
If you should have any further questions, the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
International Use: Your use of the Website is governed by United States law. If you are using the Website from outside of the United States, your information may be transferred to, stored, and processed in the United States where our servers may be located.
State of Matter™ makes no representation that the Website is appropriate or available for use in locations outside of the United States. Those who choose to access the Website from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Website in violation of United States export laws and regulations.
If you use the Website outside of the United States you, (i) consent to the transfer, storage, and processing of your information to and in the United States; (ii) may not access or use the Website if you are on the United States Treasury Department’s “Specially Designated Nationals and Blocked Persons List,” or are located in a country embargoed by the United States; and (iii) agree to comply with all local laws, rules, and regulations including all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Website. The Website is not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or that would subject State of Matter™ or its affiliates to any registration requirement within such jurisdiction or country.
Termination: You or we may suspend or terminate your account or your use of this Website at any time, for any reason or for no reason. You are personally liable for any orders that you place or charges that you incur prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Website at any time without notice.
General Provisions: If any provision of these Terms of Service is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect. You and State of Matter™ intend that the provisions of these Terms of Service be enforced to the fullest extent permitted by applicable law. Accordingly, you and State of Matter™ agree that if any provision of these Terms of Service is deemed unenforceable, where possible, it will be modified to the extent necessary to make it enforceable, which may include its deletion. Section titles are for convenience only and have no legal or contractual significance. State of Matter™ may assign these Terms of Service, in whole or in part, at any time with or without notice to you. You may not assign these Terms or Service or assign, transfer, or sublicense any rights or delegate any duties hereunder. State of Matter’s™ failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. A waiver will only be binding on State of Matter if it is in a written document signed by State of Matter™. Both you and State of Matter™ warrant to each other that, in entering into these Terms of Service, neither State of Matter™ nor you have relied on, or will have any right or remedy based upon, any statement, representation, warranty, or assurance other than those expressly stated in these Terms of Service. The preceding sentence will not limit or exclude any liability that cannot be limited or excluded under applicable law. No one other than you and State of Matter™, or State of Matter’s™ successors and permitted assigns, will have any right to enforce any of these Terms of Service.
Additional Assistance: If you do not understand any of the foregoing Terms of Service or if you have any questions or comments, we invite you to email our customer service at email@example.com.