Welcome to www.underclub.co (the “Site”), a website operated by Underclub, Inc. (“Underclub”, “we”, “us”, or “our”). Underclub offers a subscription delivery service for undergarments unique to your taste and lifestyle (“Products”) that are handpicked by Underclub personal stylists from up-and-coming labels and brands and sent to your home, office, or any location you choose (collectively, the “Services”).
You may simply browse the Site as a visitor or you may create an account (“Account”) and register with us to become a client (“Client”). You must be a Client to order Subscriptions (defined below).
3.Underclub Subscriptions AND RETURNS
Underclub Subscriptions. When you subscribe to receive a shipment, we will send you some Products chosen by Underclub (“Subscription”). You can choose to receive your Subscription on a pay-as-you-go plan on a monthly, bimonthly, or quarterly basis or on a prepaid plan for six (6) months or a year (“Subscription Plan”)
Returns. If you want to return any of the Products in your Subscription, you must contact Underclub support at [email protected] to request a return. Returns must be requested within fourteen (14) days of receipt and may be granted at the sole discretion of Underclub. Products must be returned unworn and in their original condition. We will try to accommodate requests for exchanges or replacements. Unfortunately, we cannot guarantee that you will be able to exchange or replace any item.
Legal Details. For any reason, we may decline to grant your request for a Subscription. If we decline to grant your request for a Subscription, we may notify you at the email address you provided.
Acceptance. All Products will be deemed accepted by you upon shipment, and title to and risk of loss passes to you when we provide the Product(s) to a common carrier.
Cancellations. To cancel a subscription, you must provide notice at least fourteen (14) days before your next shipment is due to ship by visiting your Account Page and cancelling any active Subscriptions. You are responsible for the Subscription Fee (as defined below) for any Subscription that is not cancelled with the required notice. If you are on a prepaid Subscription Plan, you will be refunded your Subscription Fee less the full cost for any part of the Subscription you have already received.
You may pay for your Subscription via credit card or other manner then available on the Site (“Subscription Fee”). If you have a referral credit, the referral credit will be credited to the Subscription Fee and the remaining balance, if any, may then be paid via credit card or other manner then available on the Site. By submitting your payment information to us, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of the purchase date unless we otherwise notify you. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We will not be liable in the event others acting with or without your permission use your credit card, PayPal account, or other means of payment to purchase a Subscription on the Site; however, you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
Underclub does not disclose the prices unless you request pricing information for Products you receive. While Underclub makes efforts to follow the style preferences you express in your Style Profile, we do not guarantee that every item in your Subscription will comply with those preferences. Please remember that you are responsible for paying the Subscription Fee whether the Products conform to your Style Profile or not, unless you request a return in accordance with Section 3. The manufacturer of each Product, and not Underclub, is solely responsible for the quality and all warranties, explicit and implied, of any of its Products shipped as part of your Subscription. If you have any problems with a Subscription, you should first contact Underclub by email at [email protected].
You may purchase Underclub gift subscriptions through the Services (“Underclub Gifts”). Underclub Gifts can be redeemed for the Services made available through the Site. Underclub Gifts cannot be redeemed for cash or credit except where required by law. For balance information contact: [email protected]. Underclub is not responsible for lost or stolen Underclub Gifts. Risk of loss and title for Underclub Gifts pass to the purchaser upon electronic transmission to the recipient. For avoidance of doubt, recipient may not always be you. Underclub reserves the right to close accounts and request alternative forms of payment if an Underclub Gift is fraudulently obtained or used on the Service.
It is our goal to make access to our Site and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell, or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you. Please use good taste in any and all content you post to our Site, comments to our blog, or on any other page or website related to Underclub, including text, links, images and videos, other than Underclub content (“Your Content”). We reserve the right, but do not undertake an obligation, to restrict your access to the Site and/or Services or remove any of Your Content from the Site if you do not meet the guidelines below.
YOU MAY SEE THINGS POSTED BY THIRD PARTIES THAT YOU DID NOT WANT TO ENCOUNTER
You can ignore it, but we prefer you report it by sending an email to [email protected].
Underclub reserves the right, in its discretion, to suspend your Account, your use of the Services or the Subscription at any time at our discretion including, as necessary to protect the security or operation of the Site or Services.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements, or other feedback related to Products, the Site, or the Services (collectively “Feedback”), you agree we may use the Feedback to: (a) modify our Site and Services or any Products and (b) promote the Site, Services, and Products, and that you will not be due any compensation for your Feedback that is used in these ways. To the extent that we have your name, likeness, or voice, this will be part of the Feedback and you agree that we may use your name, likeness, and voice in the same manner that we can use other Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
We reserve the right to modify or discontinue the Site or Services (including Subscriptions) with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO COLLECT PAYMENT, FACILITATE THE FULFILLMENT OF SUBSCRIPTIONS, AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE, OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PRODUCTS OR FOR ANY INFORMATION APPEARING ON ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (i) THE TOTAL AMOUNT YOU PAID FOR YOUR SUBSCRIPTION(S) IN THE THREE (3) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO OUR LIABILITY, AND (ii) TEN DOLLARS (U.S. $10.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.
Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
You hereby release Underclub, its officers, employees, agents and successors from claims, demands, any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Site or Services; or (ii) your purchase of any Subscriptions or Product(s). You hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor" and you waive any other similar provision of the laws of any other applicable jurisdiction.
Underclub specifically prohibits the posting of any content that violates or infringes the copyrights and/or other intellectual property rights (including rights of privacy and publicity) of any person or entity. If you believe that any material contained on this Site infringes your copyright or other intellectual property rights, you should notify us of your copyright infringement claim in accordance with the following procedure. Underclub will process notices of alleged infringement that it receives and will take appropriate action as required by the Digital Millennium Copyright Act (“DMCA”).
The DMCA requires that notification of claimed copyright infringement should be sent to our copyright agent at [email protected].
To be effective the notification must be in writing and contain the following information (DMCA, 17 U.S.C. § 512(c)(3)):
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Underclub must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration will be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration will be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to -face hearing is appropriate, in which case one should be held at a location agreed to by you and Underclub, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR UNDERCLUB MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Underclub will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) Underclub also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator will honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or Underclub will be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Underclub customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.
Notwithstanding the foregoing, either you or Underclub may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration provision. Such claims will be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in San Francisco, California. Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts. A request for interim measures will not be deemed a waiver of the right to arbitrate.
With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor Underclub will be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and Underclub will be exclusively brought in the state or federal courts in San Francisco, California.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org..
Last updated April 7, 2015