23point5 (“23point5” or “we” or “us” or “our”) has created a platform that brings Creators and fashion consumers together. We provide a range of services through our website (collectively, the “Services”) which enables you, if you are a Creator, to publish, sell, and promote your artwork, and if you are a fashion consumer, purchase unique, customizable garments featuring artwork from independent Creators, through the Services and receive the benefits of the Services. The platform enables Creators to earn money from their artwork by making it available for sale to fashion consumers on unique, customizable garments.
Please carefully read these terms of service (“Terms”), and our privacy policy (the “Privacy Policy”). Before you may use the Services, you must agree to these Terms and the Privacy Policy. By creating an account, publishing artwork, purchasing items, and otherwise using the Services, you agree to all of the terms and conditions in these Terms, as well as all other rules, policies and procedures relating to the Services that we may publish from time to time. By using the Services, you are agreeing to all of the Terms and policies. If you do not agree with any of the Terms or policies, do not access or otherwise use the Services. By using the Services after we have updated the Terms and policies you are agreeing to all the updated Terms and policies; if you do not agree with any of the updated Terms and policies, you must stop using the Services.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH 23POINT5. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
“You” means you individually, and if you are accepting these Terms on behalf of a company or other legal entity, that legal entity. If you are entering into these Terms on behalf of a company or other legal entity, you have the authority to bind that legal entity. By using the Services, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Services with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Services and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless 23Point5 if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Services at any time or in any manner or submit any information to 23Point5 or the Services. IF YOU DO NOT MEET THESE REQUIREMENTS, YOU MAY NOT USE THE SERVICES.
23Point5’s Intellectual Property
23Point5 is a trademark of 23Point5 in the United States. Other trademarks, names and logos on the Services are the property of their respective owners. Unless otherwise specified in these Terms, all information and screens appearing on the Services, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof (“Services Content”), are the sole property of 23Point5, Copyright © 2023, 23Point5. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
23point5 may make certain artwork, images, graphics, shapes, forms and other design elements and assets available to Creators for use in creating custom garments on the Services, which may include design elements and assets created at your request (“23point5 Design Elements”). 23point5 is the sole owner of all right, title and interest in and to 23point5 Design Elements. Subject to and conditioned upon your compliance with all terms and conditions of these Terms, while you have a valid account with the Services, 23point5 grants you a limited, personal, non-exclusive, non-sublicensable right and license to use the 23point5Design Elements to create customized garments using the Services. Except for the limited rights granted in these Terms 23point5 retains all right, title and interest in and to the 23point5 Design Elements and Services Content.
Except for Creator Content (as defined below), 23point5 is the owner of all Intellectual Property Rights (as defined below) of whatever nature in and to all elements of the apparel and other items created through the Service, including, without limitation, any designs created by 23point5 specifically for the Custom Apparel, 23point5 Design Elements and Services Content (collectively, the “23point5 Intellectual Property”). Creator acknowledges that 23point5 and/or other users of the Service may create and produce apparel containing the same or substantially similar designs or concepts as used in your apparel (provided, for avoidance of doubt, that such other apparel may not incorporate the Creator Content without Creator’s consent). In the event Creator for any reason obtains or is deemed to possess an ownership interest in any 23point5 Intellectual Property (a “Creator Interest”), Creator does and will irrevocably and exclusively assign to 23point5 all of Creator’s right, title and interest in and to any such Creator Interest. To the extent any of the rights, title and interest in and to such Creator Interest cannot be assigned by Creator to 23point5, Creator hereby grants to 23point5 an exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, reproduce, distribute, create derivative works from, publicly display, publicly perform, make, have made, offer for sale, sell or otherwise dispose of, import and otherwise exploit those non-assignable rights, title and interests in and to the Creator Interests. To the extent any of the rights, title and interest in and to the Creator Interest can neither be assigned nor licensed by Creator to 23point5, Creator hereby irrevocably waives and agrees never to assert the non-assignable and non-licensable rights, title and interest against 23point5, any of 23point5’s successors in interest, or any of 23point5’s customers, officers, directors, employees, contractors, agents and assigns. For purposes of these Terms, “Intellectual Property Rights” means all copyrights, patent rights, trade secret rights, trademark rights, and other intellectual property or other proprietary rights worldwide, including all registrations, applications for registration, and renewals and extensions thereof, all associated goodwill, and all benefits, privileges, causes of action, and remedies relating to any of the foregoing.
As between you and 23point5, you own and retain all rights in your artwork and content that you independently submit to the Services (“Creator Content”). You hereby grant us, our websites, third party affiliates, wholesale partners, and our third party retailers a worldwide, royalty-free, nonexclusive, assignable license, with right of sublicense, to use, publicly display and publicly perform, publish, reproduce, modify, and distribute your Creator Content in any format or medium now known or later developed for the purpose of promoting your artwork and content, producing and promoting items with your artwork and content, and providing the Services. Creator Content does not include Services Content or 23point5 Design Elements (as those terms are defined below).
You can contact us at hello@23point5.com if you wish to terminate the license granted in the preceding paragraph. If you terminate our license, we, our affiliates, wholesale partners, and our third party retailers will have ninety (90) days to delete your Creator Content from the Services, unless we mutually agree otherwise. We, our affiliates, wholesale partners, and third party retailers will have the right to sell any items bearing your Creator Content during such ninety (90) day period (or any other period to which we may agree).
YOU, AND NOT 23POINT5, ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ALL YOUR CREATOR CONTENT THAT YOU MAKE AVAILABLE THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION TO, THE LEGALITY, RELIABILITY, AND APPROPRIATENESS, AND THE RESPONSIBILITY TO OBTAIN ALL REQUIRED INTELLECTUAL PROPERTY AND OTHER RIGHTS IN YOUR CREATOR CONTENT, INCLUDING THE RIGHT TO MANUFACTURE, DISTRIBUTE AND SELL PRODUCTS THAT INCLUDE YOUR CREATOR CONTENT.
You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Creator Content you make available through the Services.
You represent and warrant that:
1. You solely and exclusively own all intellectual property rights in your Creator Content, or you have otherwise obtained all copyrights, trademark rights, rights of publicity and other rights required for you to make your Creator Content available through the Services, to manufacture, distribute and sell items that include your Creator Content and to grant us the rights granted to your Creator Content in these Terms;
2. Your Creator Content and the manufacture, distribution and sale of items that include your Creator Content does not and will not infringe the intellectual property rights or other rights of any third party, including, without limitation to, any copyright, moral rights, trademark, patent, right of publicity or right of privacy of any third party;
3. Your Creator Content does not contain material that is false, inaccurate, misleading, deceptive, incomplete, defamatory or libelous, abusive, inflammatory, obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy, in violation of anyone’s rights, including their privacy or publicity rights, or is otherwise objectionable;
4. Your Creator Content does not offer or disseminate fraudulent or counterfeit goods, products, services, schemes, or promotions.
You understand that the Services contain artwork and content submitted by Creators that may be in the form of designs, images, pictures, data, text, photographs, graphics, video, messages, or other materials submitted, posted, published, displayed, performed, or offered for sale through the Services.
Though we may prescreen artwork or content, we are not required to do so, and we are not responsible for examining or evaluating artwork or content. You understand and acknowledge that you may be exposed to artwork or content that you may find to be offensive, indecent or objectionable.
LINKS TO THIRD-PARTY SITES
This Services may be linked to other websites that are not 23point5 sites, including, without limitation to, social networking, blogging and similar websites through which you are able to log into using your existing account and log-in credentials for such third-party sites, including, without limitation to, Facebook and Google, (any and all of which of the foregoing listed websites may change from time to time) (collectively, “Third-Party Services”). Certain areas of the Services may allow you to interact and/or conduct transactions with such Third-Party Services, and, if applicable, allow you to configure your privacy settings in your Third-Party Services account to permit your activities on this Services to be shared with your contacts in your Third-Party Services account and, in certain situations, you may be transferred to a Third-Party Services through a link but it may appear that you are still on this Services. In any case, you acknowledge and agree that the Third-Party Services may have different privacy policies and terms and conditions and/or user guides and business practices than 23point5, and you further acknowledge and agree that your use of such Third-Party Services is governed by the respective Third-Party Services privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third-Party Services. 23point5 is providing links to the Third-Party Services to you as a convenience, and 23point5 does not verify, make any representations or take responsibility for such Third-Party Services, including, without limitation to, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Services.
YOU AGREE THAT 23POINT5 WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY. Any reference on the Services to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply 23point5's endorsement or recommendation.
BUYING AND SELLING ITEMS
Orders
All items are subject to availability, and we reserve the right to limit the number of items in an order, to reject all or part of an order, and to discontinue items without notice, even if you have already placed your order. Your placement of an order does not necessarily mean that we will accept your order. We reserve the right to refuse any order in our sole discretion. In addition, before accepting your order, we may require additional information if such information is required to complete your order.
Generally, the Services are intended for items ordered for your personal use. However, if you are interested in buying large quantities of items, please contact us at hello@23point5.com.
Payments
If you wish to make a purchase from us, you will be asked by us or our third party payment processor to supply certain information relevant to your purchase, including, without limitation to, credit card number, expiration date, billing address and shipping information.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED BY YOU OR THROUGH YOUR ACCOUNT TO PURCHASE ANY PRODUCT AND/OR SERVICE.
You acknowledge that any such information will be treated by us in accordance with our Privacy Policy. You grant us the right to provide such information to third parties in order to facilitate the completion of transactions initiated by you or on your behalf through the Services. We reserve the right to independently verify any information you provide before accepting your order.
Taxes and Shipping
Applicable taxes will be shown during the checkout process prior to finalizing your order. If applicable, VAT is included in the purchase price. You are responsible for all taxes associated with your order. Shipping charges will be shown during the checkout process prior to finalizing your order. Shipping charges include the shipping, packaging and handling costs. Title to the items passes to you upon shipment. We will do our best to deliver your items in a timely manner. However, we cannot guarantee that there will not be any shipping delays or problems.
Errors, Inaccuracies and Omissions
We strive to provide you with accurate information, but we do not warrant that the images, pricing, descriptions, or other information on the Services are accurate, complete, error-free, or current. In addition, all size measurements and size charts are approximate. In the event of an error, we reserve the right to correct it and revise your order accordingly, or to cancel the order and refund any amount charged. If you receive an order that you believe contains a mistake, we encourage you to contact us promptly so that we can make it right.
Return and Refund Policies
At 23point5, we have gone to extreme measures to provide you with a piece of clothing that is pristinely designed with cutting edge technology and is made with environmentally friendly materials and processes. Our mission is to make you feel an emotional bond with the clothes you buy and wear. We truly believe you will cherish a 23point5 product forever, and thus are less likely to return it.
Currently, we do not accept returns or exchanges because our garments are fully customized. Every product that we make is specifically manufactured for you. We humbly ask you to please be sure that the design you select or create is the one you want to keep. We cannot resell a customized piece and will only accept a return for a product that is defective or if you received the wrong item. Please contact 23point5 at hello@23point5.com if you think you received a defective product or the wrong item. After approval of your refund request, we will provide you with a full refund or exchange.
When it comes to size, we do understand that you may not always be satisfied with the size that you selected. However, at 23point5 we have designed a sizing methodology so robust and inclusive, we are confident we can capture any customer’s accurate sizing fit. We will accept an exchange on your first order with us, if an item does not fit and you would like a different size. After your first order, we will not accept any returns or exchanges for fit reasons.
If you have any questions or concerns about your order, please email us at hello@23point5.com
IN THE EVENT THAT YOUR ACCOUNT IS SUSPENDED OR TERMINATED DUE TO YOUR VIOLATION OF THESE TERMS OR OUR POLICIES AS DETERMINED BY US IN OUR REASONABLE DISCRETION, YOU WILL NOT RECEIVE ANY UNPAID CREATOR COMMISSION. IN ADDITION, WE WILL HAVE THE RIGHT TO REQUIRE YOU TO REIMBURSE US FOR ANY CREATOR COMMISSION THAT YOU RECEIVED WHILE YOU WERE VIOLATING THESE TERMS OR OUR POLICIES.
If you believe that any Creator Commission has been erroneously withheld from you or that your account has been wrongly suspended or terminated, please e-mail us at hello@23point5.com so we may further investigate. If, after the conclusion of our investigation you are not satisfied with the outcome, see the section titled “Dispute Resolution” to understand your rights.
Marketing Guidelines
Creator shall adhere, and shall cause Creator’s affiliates to adhere, to all reasonable guidelines determined by 23point5 from time to time concerning all social media and other advertising or public display of apparel and other items created through use of the Services, including, without limitation, guidelines concerning the tagging or linking to 23point5’s official handle on such social media platforms. In the event any social media, advertisements or public display of apparel and other items created through use of the Services or reference to 23point5 by Creator or Creator’s affiliates, including all elements and content thereof, are determined by 23point5 to be offensive, obscene or otherwise damaging to 23point5 or its business, 23point5 shall be entitled to provide written notice thereof to Creator shall promptly thereafter delete, remove or modify to the satisfaction of 23point5 such social media, advertisement or public display of the Custom Apparel or reference to 23point5.
ACCOUNT CREATION
Registration and Account Information
In order for the artwork you provided to be printed on items sold through the Services, or to purchase an item through the Services, you must create an account. When creating an account, you promise to provide accurate and complete information. If any information you provide changes at any time, you must promptly update your account information accordingly. If you are a Creator providing your artwork, we reserve the right to require you to provide additional information confirming your identity, including government identification, payment information, and tax identification and/or withholding forms. You will promptly provide such information upon our request. We will use such information in accordance with our privacy policy.
You may not create more than one (1) account or create an account for anyone else other than yourself. You are solely responsible for all the activity that occurs through your account, including the activities of others and regardless of whether the activities are authorized, and for keeping your account password secure. You agree to notify us immediately of any breach of security or unauthorized use of your account. Although we will not be liable for your losses caused by any unauthorized use of your account, you may be liable for our losses or the losses of others due to any unauthorized use. We reserve the right to require you to change your password from time to time, for security purposes or otherwise.
You may never use another person’s account. We reserve the right to refuse to provide you with an account or cancel your account in our sole discretion, provided that such termination will not terminate our obligation to pay you any Creator Commissions that are rightfully due to you.
Disclosure of Account Information
You acknowledge and agree that we may access, retain and disclose your account information, Creator Content if required to do so by law or in a good faith belief that any access, retention or disclosure is reasonably necessary to:
(a) enforce these Terms or the policies;
(b) respond to your requests for customer service;
(c) respond to a legal notice;
(d) comply with legal process; or
(e) protect the rights, property or personal safety of our company, our users or the public.
Termination of Account
1. We may suspend or terminate your access to the Services if you are determined to be, in our sole discretion, in violation of these Terms or any of our policies. We may also suspend or terminate your access to all or any part of the Services or your account at any time, with or without cause, with or without notice, effective immediately.
2. You may terminate these Terms at any time by terminating your use of the Services.
3. On termination of these Terms for any reason, the rights and licenses granted to you hereunder will immediately terminate and the provisions of these Terms that by their nature and context are intended to survive termination will survive. We will have no liability to you for any damages, loss of profits or other claims arising from the termination or suspension of your access to the Services or your account.
Upon termination we will suspend your account and remove your Creator Content, if any, from the Services within ninety (90) days, and we will also remove your Creator page from the Site. Notwithstanding the foregoing, we may retain copies of your account information and Creator Content for our internal business and legal purposes. Unless your account has been terminated for a breach of these Terms or any of our policies, as determined by us in our reasonable discretion, you will be paid any Creator Commission owed to you through the termination of your account.
If you believe that your account has been wrongly suspended or terminated, please e-mail us at hello@23point5.com so we may further investigate. If, after the conclusion of our investigation you are not satisfied with the outcome, see the section titled “Dispute Resolution” to understand your rights.
GRANT OF RIGHTS AND USER CONDUCT
Grant of Rights
Subject to your compliance with these Terms and our policies, we grant you a limited, non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Services solely for your own personal use, and solely for their intended purpose.
Electronic Communications
By using the Services, you consent to receiving electronic communications from 23Point5. These electronic communications may include notices about your orders, your Creator Commissions, other fees and charges, transactional information and other information concerning or related to the Services, as may be applicable to you. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
User Conduct
When using the Services, you agree that you will not, either directly or indirectly:
1. Post artwork, titles, tags, descriptions, or other content that is pornographic, obscene, offensive, profane, or depicts, promotes, or incites illegal activity, hate, abuse, discrimination, denigration, objectification, or violence, uses racially, ethnically or otherwise offensive language, exploits children or minors or depicts cruelty to animals, as determined by us in our sole discretion.
2. Use, reproduce, copy, modify, adapt, create derivative works from, publish, print, transmit, distribute, perform, display, sell, license, rebrand, or otherwise transfer: (a) any portion of the Services, artwork or content made available through the Services other than your own artwork or content, without the owner’s express written permission; or (b) any 23point5 copyrights or trademarks;
3. Interfere with another user’s artwork or content;
4. Remove any copyright, trademark or other proprietary rights notices contained in or on the Services or any artwork or content other than your own artwork or content;
5. Upload, post, email, transmit or otherwise make available any artwork or content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or other proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
6. Post artwork, content, titles, tags, or descriptions that infringe on a third party’s copyright, trademark, right of publicity, or other intellectual property rights.
7. Post artwork or content with inaccurate, deceptive, inappropriate, or offensive titles, tags, or descriptions;
8. Stalk, harass or harm another person via use of the Services;
9. Impersonate any person or entity, including, but not limited to, our employees, representatives or users, or falsely state or otherwise misrepresent your affiliation with a person or entity;
10. Harvest or otherwise collect information about other users of the Services, including email addresses, without their express written consent;
11. Upload, post, email, transmit or otherwise make available through the Services any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
12. Use any robot, spider, scraper or other automated means to access the Services;
13. Frame, mirror, or otherwise simulate the appearance or function of the Services or any other user’s artwork or content or otherwise manipulate identifiers in order to disguise the origin of any artwork or content transmitted through the Services;
14. Decompile, disassemble or otherwise reverse engineer the Services or any portion thereof, or otherwise attempt to derive the source code or other trade secrets embodied in the Services;
15. Distribute viruses or any other technologies that may harm us or the interests or property of our users, or upload, post, email, transmit or otherwise make available through the Services any material that contains adware, malware, spyware, software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
16. Interfere or attempt to interfere with the proper working of the Services or any activities conducted through them, or take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
17. Bypass any measures we may use to prevent or restrict access to the Services; or
18. Circumvent or manipulate our payment process or Creator Commission.
This list of prohibitions provides examples and is not complete or exclusive. 23Point5 reserves the right to (a) terminate access to your account, your ability to access or use the Services and (b) refuse, delete or remove any of your artwork or content, with or without cause and with or without notice, for any action that 23Point5 determines is inappropriate or disruptive to the Services or to any other user of the Services. 23Point5 may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at 23Point5’s discretion, 23Point5 will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Services.
Unauthorized use of any materials or third party content provided through the Services may violate certain laws and regulations.
You agree to defend, indemnify and hold 23Point5 and its officers, directors, employees, affiliates, agents, licensors, and business partners and successors in interest harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) 23Point5 or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party relating to your use of the Services or the use of the Services by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Creator Content), including any allegation that your use of the Services violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party; or that 23point5’s permitted use of your Creator Content infringes or misappropriates the copyrights, trademark rights or any other rights of any third-party.
INTELLECTUAL PROPERTY INFRINGEMENT
DMCA Notification
23Point5 respects the intellectual property rights of others, and we ask you to do the same. 23Point5 may, in appropriate circumstances and at our discretion, terminate service and/or access to the Services for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Services, please provide 23Point5’s designated agent the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
3. 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 at the Services, and information reasonably sufficient to permit 23Point5 to locate the material.
4. Information reasonably sufficient to permit 23Point5 to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
23Point5’s agent for notice of claims of copyright or trademark infringement on the Services can be reached as follows: Email: admin@23point5.com
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to 23Point5 designated agent that includes all of the following information:
1. Your physical or electronic signature.
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which 23Point5 may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
23Point5 reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES
Your use of the Services is at your own risk. The materials provided through the Services have not been verified or authenticated in whole or in part by 23Point5, and they may include inaccuracies or other errors. 23Point5 does not warrant the accuracy of timeliness of the materials provided through the Services. 23Point5 has no liability for any errors or omissions in the materials provided through the Services, whether provided by 23Point5, our licensors or suppliers or other users.
ANY WARRANTIES MADE BY 23POINT5 ARE FOR THE BENEFIT OF THE USER OF THE SERVICES ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE SERVICES, OTHER THAN THE GARMENTS YOU PURCHASE, ARE LICENSED AND NOT SOLD. 23POINT5, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, OPERABILITY, CONDITION, NON-INTERFERENCE, NON-INFRINGEMENT, WORKMANSHIP, TRUTH, ACCURACY (OF ANY DATA, INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED THROUGH THE SERVICES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY ARTWORK, CONTENT, INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING ALL 23POINT5 DESIGN ELEMENTS AND SERVICES CONTENT, IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. 23POINT5 DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
LIMITATION OF LIABILITY
23POINT5 SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY ARTWORK, CONTENT, OR MATERIALS TO OR FROM THIS SITE, INCLUDING ANY 23POINT5 DESIGN ELEMENTS AND SERVICES CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL 23POINT5 BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF 23POINT5 KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. 23POINT5’S CUMULATIVE LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO 23POINT5 IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
LOCAL LAWS; EXPORT CONTROL
23Point5 controls and operates the Services from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use the Services outside the United States of America, you are responsible for following applicable local laws.
FEEDBACK
If you send or transmit any communications, comments, questions, suggestions, or related materials to 23Point5, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Services, including, without limitation, to new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and 23Point5 is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that 23Point5 is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
IntroductionPlease read the following (this “Provision”) carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at hello@23point5.com. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and 23Point5. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and 23Point5 shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “23Point5” means 23Point5 and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and 23Point5 regarding any aspect of your relationship with 23Point5, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as 23Point5’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give 23Point5 an opportunity to resolve the Dispute. You must commence this process by mailing written notification to 23Point5 at 1 Wrigley Irvine, CA 92612, USA. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If 23Point5 does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt-Out
Not withstanding the above, you or 23Point5 may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to 23Point5, 1 Wrigley Irvine, CA 92612, USA. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with 23Point5 through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with 23Point5. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or 23Point5 may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
1. Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
2. Location of Arbitration – You or 23Point5 may initiate arbitration in either [CLIENT’s U.S. location] or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, 23Point5 may transfer the arbitration to [CLIENT’s U.S. location] in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
3. Payment of Arbitration Fees and Costs – 23Point5 will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with 23Point5 as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and 23Point5 specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver
You understand and agree that by entering into this Agreement you and 23Point5 are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and 23Point5 might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your service with 23Point5 or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if 23Point5 makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require 23Point5 to adhere to the language in this Provision if a dispute between us arises.
GENERAL
23Point5 prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by 23Point5, may result in immediate termination of your access to the Services without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Services will be heard in the courts located in Los Angeles County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. 23Point5’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and 23Point5 and supersede all prior or contemporaneous negotiations, discussions or agreements between you and 23Point5 about the Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
CALIFORNIA CONSUMER NOTICE
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Services are provided by 23Point5, LLC. If you have a question or complaint regarding the Services, please contact customer service at hello@23point5.com. You may also contact us by writing to us at 23Point5, 1 Wrigley Irvine, CA 92612, USA. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
Changes
We may make changes to these Terms from time to time in our discretion. Any changes these Terms will be posted to this page. Accordingly, please refer back to these Terms frequently. By using the Services following the effective date of any changes, you agree to all of the terms and conditions in these Terms, as revised.
CONTACT US
If you have any questions about these Terms or otherwise need to contact 23Point5 for any reason, you can reach us at hello@23point5.com.
Effective Date: May 10, 2023
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