Terms of service

TERMS OF SERVICE

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OVERVIEW
This website is operated by Swank A Posh. Throughout the site, the terms “we”, “us” and “our” refer to Swank A Posh. Swank A Posh offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 - PRODUCTS OR SERVICES (if applicable)
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy.

SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

SECTION 8 - THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 10 - PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy. To view our Privacy Policy.

SECTION 10 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 11 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 12 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Swank A Posh, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 13 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 14- INDEMNIFICATION

You agree to indemnify, defend, and hold harmless Swank A Posh and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of these Terms of Service or documents they incorporate by reference, or violation of any law or the rights of a third-party.

SECTION 15 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 16 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 17 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of 14903 e 8 mile rd eastpointe Michigan US 48021.
SECTION 19 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 18 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at OutReach@ShopSwankAPosh.com.
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SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

Swank A Posh(hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Swank A Posh and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of digital and physical products, services, and events. Messages may include checkout reminders.
Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at outreach@shopswankaposh.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;

- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;

- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;

- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;

- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and

- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Warren, MI before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Swank A Posh’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration.

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, 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.

Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

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INTRODUCTION

Welcome to SwankAPosh! These Terms of Service are a written contract (the “Terms”) between you and/or your company (collectively, “you”) and SwankAPosh, LLC (“Company,” “we” or “us”) and apply to your use of our websites and mobile apps. In these Terms, we refer to all of our websites and apps as the “Website,” unless we’re only talking about our apps, in which case we refer to them as “Apps.” These Terms also apply to your purchase and use of any goods or services (“Products”) through the Website.

If you don’t agree to these Terms, then you must stop using the Website.

ARBITRATION

This is important, so we are mentioning it here at the top of the Terms:

These Terms contain an “Arbitration Agreement” where you waive your right to a jury trial and to bring a class action.

What is arbitration?

Legal disputes are usually resolved in a court of law in front of a judge and, sometimes, a jury. Court cases are a matter of public record. Arbitration is a less formal and more private way of resolving disputes. Instead of going to court, the parties give their arguments and evidence to an arbitrator, and the arbitrator decides who “wins” the case by applying the law in the same way that a judge would. In fact, many arbitrators are retired judges or lawyers. Instead of a courtroom, arbitrations are generally held in a private office, such as a conference room, or by videoconference.

What is our Arbitration Agreement?

Under these Terms, ANY DISPUTE OR CLAIM BETWEEN YOU AND US RELATING TO YOUR USE OF THE WEBSITE OR PRODUCTS, THESE TERMS, THE PRIVACY POLICY, OR ANY OF THE OTHER TERMS AND POLICIES LISTED IN THESE TERMS MUST BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION. This means that we all agree that we will only resolve our legal disputes through arbitration and not in a court of law. Without this Arbitration Agreement, you would have the right to sue in court with a jury trial.

How will the arbitration work?

The arbitration must be filed and conducted through JAMS (www.jamsadr.org), which is a provider of arbitration services in the United States and internationally. JAMS’ Streamlined Rules will apply to the arbitration. All claims, remedies, and defenses that either you or we have under applicable law (whether federal, state, or local) will remain available to us in the arbitration. Each of us will participate in choosing a neutral arbitrator using the process in the Streamlined Rules. Unless you waive this requirement, the final arbitration hearing (which is like a trial) will take place in person at the JAMS facility closest to your home. The arbitrator’s award will consist of a written statement explaining the arbitrator’s decision on each claim. The award will also include a concise written statement of the findings of fact and conclusions of law on which the award is based. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.

What law will the arbitrator follow?

The laws of Michigan govern these Terms. The arbitrator will apply Michigan law to the claims in the arbitration.

Who pays for the arbitration?

In most cases, the only fee you will have to pay to JAMS is $250; we will pay all other arbitration costs. However, if the arbitrator decides that you filed your claim in bad faith and without any legal basis, the arbitrator can require you to pay more (or even all) of the JAMS fees for the arbitration.

The JAMS fees do not include attorneys’ fees. Regardless of who wins the claim, you will be responsible for paying your attorneys’ fees and we will be responsible for paying ours. The only exception is if the claim is brought under a law that specifically allows a party to recover its attorneys’ fees. If this applies, the arbitrator may award attorneys’ fees as they see fit under such law.

Are there any instances where a court will get involved?

Yes. There are things an arbitrator cannot do, like order a party to act or stop doing something—this is known as “equitable relief.” Either one of us can go to court and seek equitable relief, including by filing a motion to compel the other party to honor the arbitration agreement. However, you and we agree that the only courts where we will seek equitable relief—or file any legal proceeding outside of arbitration—are the state and federal courts in Macomb County, Michigan. This exception for equitable relief does not waive our Arbitration Agreement.

Can I file a class action?

No. You and we agree that we will only file claims against each other individually and not as a plaintiff or class member in a representative proceeding. THIS MEANS CLASS ACTIONS ARE NOT ALLOWED.

OUR SERVICES (HOW THE WEBSITE WORKS)

The Website is a marketplace for Products. We post Product “Listings” on the Website and sell the Products to other users (“Buyers”).

The Website also allows users like you to publish reviews about Products and upload content, including personally identifiable information, in connection with reviews.

THIRD PARTIES

What are third parties?

Third parties are any person or business other than you or us—in other words, someone who is not a party to this Agreement. Here are a few examples of third parties:

Our vendors. These third parties help us to run the Website. To do so, they may place cookies on your device or have access to your personal information. We address the exchange of information with our third-party vendors in our Privacy Policy.
Other users of the Website. While other users may have agreed to the terms of the Website, they are not party to this Agreement between you and us. Accordingly, when other users post Content to the Website, it is third-party Content—meaning neither you nor we are responsible for it.
Other websites or apps. The Website may contain links to other websites and apps that are operated by third parties. We may have relationships with some of these third parties, while with others, we do not.

Third-Party Content

Third-party Content includes any posts, uploads, messages, opinions, advice, statements, or other information posted to the Website by a third party. Third parties are solely responsible for their own Content. We do not review all third-party Content and do not guarantee that it is accurate, complete, or useful. We are not responsible for your reliance on third-party Content.

If you feel that third party Content engages in doxing or other violation of our Community Guidelines, you may report the same by outreach@shopswankaposh.com.

Third-Party Websites

The Website may contain links to third-party websites or apps. Some of these third parties may have a business relationship with us while others do not. We do not have control over the content or performance of a third-party website. Except where we’ve expressly indicated an affiliate relationship or other endorsement, we don’t represent or endorse third-party websites, apps, information, goods, or services.

PAYMENTS

Your Payments

You agree to pay Company all costs and fees associated with any purchases made by you on the Website.

Refunds and Returns

All refunds and returns are governed by our Return and Exchange Policy.

Gift Cards

Gift cards purchased on the Website may only be redeemed for Products on the Website. We cannot re-issue lost, stolen, mislaid or damaged gift cards. You cannot use a gift card to purchase another gift card. You cannot return or otherwise redeem a Gift Card for cash back.

YOUR USER ACCOUNT AND CONTENT

Your Account

We may ask you to create a user account (your “Account”) to access certain parts of the Website. You promise that you will only provide complete and accurate information to us in connection with your Account. This means you cannot set up your Account in a manner that impersonates another person or business. If you violate this policy, we may terminate your Account and delete all your Content.

Account Security

It is up to you to ensure your username and password are secure. You agree not to share your Account login details with anyone else. If you believe your Account has been accessed without your permission, you should immediately notify us.

Your Content

We refer to all content uploaded, posted, or communicated to or through the Website as “Content.” Your Content includes your posts and status updates, images, photographs, profile pictures and information, video and audio recordings, artwork, music, literary works, gifs, memes, reviews, comments, ratings, and your interactions with other users through the Website (both public and private messages). Your Content includes all Content posted through your Account, regardless of whether you personally posted it.

It is up to you to make sure that your Content obeys these Terms, our Community Guidelines and the law. It is not an excuse to say you did not understand the law, that you were simply reposting another user’s Content, or that you’ve seen similar Content posted by others. Once you decide to post it, the Content becomes your responsibility. When you publish Content on the Website, you acknowledge that it will be publicly viewable.

Abusive and Illegal Content

You agree not to post any of the following types of content:

Infringing Content. Infringing Content is any Content that does not belong to you and for which you have not obtained permission from the owner to post it. For example, any photograph you did not personally take is infringing Content; however, if your friend took a photograph and gave you permission to post it on the Website, it is no longer infringing.
Illegal or Obscene Content. Any Content prohibited by law—such as child pornography—is also prohibited on the Website. We also prohibit obscene Content, including Content depicting violence, rape, drug use, and similar illegal acts, whether fictionalized or real. We do not allow Content containing pornography, depiction of sexual acts, or nudity on the Website, whether legal or not.
Threatening, Defamatory, or Invasive Content. We don’t allow any Content that threatens or spreads misinformation about other users or persons. We don’t allow any Content that violates a user’s privacy, such as doxing. The enforcement of this section is within our exclusive discretion. This means that we do not have to take down Content just because you feel it is dishonest or threatening.
Commercial Solicitations or “Spam.” Do not post Content that solicits other users or constitutes spam. Spammy comments are a great way to get your Account terminated. If you see other users posting spam, you should report it. We appreciate your help with our effort to keep the Website spam-free.

When you post prohibited Content, it creates legal problems for you and our Company. If a third-party asserts any legal claims against us regarding your Content, you agree that you will indemnify, defend, and hold us harmless for and against all claims asserted by third parties (including, without limitation, other users) that arise out of or relate to your Content. This means you will pay all of the attorneys’ fees and other costs we incur to defend our Company in a lawsuit related to your Content. As you can see, it’s easier and cheaper if you don’t post the prohibited Content in the first place!

To prevent such claims from happening, we reserve the right to remove or edit your Content, but we have no obligation to do so, and we do not conduct such reviews as a matter of practice.

Reviews

If your Content contains any reviews or comments (or personal information provided in connection with a review or comment)—including reviews of the Website, Products, and Company, you represent that such reviews and comments are true and accurately represent your experience. You understand and agree that, pursuant to the license granted in your Content, we will have the right to republish all or part of your reviews and comments on the Website, Company’s social media accounts, advertising, and other media as Company deems fit.

Rewards Program

SwankAPosh offers users the opportunity to earn points in connection with their purchase of qualified products and services on the Website, and points are redeemable toward the purchase of certain products and services on the Website (the “Swank Rewards Program”). The Swank Rewards Program is offered by SwankAPosh at its sole discretion, and is subject to change or cancellation at any time.

Eligibility

No purchase is necessary to enroll in the Swank Rewards Program, and there is no cost to enroll. Enrollment is limited to one account per individual, and accounts are automatically enrolled in the Swank Rewards Program upon account creation. If at any time you wish to disenroll from the Swank Rewards Program, please contact us at outreach@shopswankaposh.com. The Swank Rewards Program is void where prohibited by law.

Earnings Tiers

There are three tiers in the Swank Rewards Program. New accounts are automatically enrolled at the “New Girl” tier. Upon earning 500 or more points within a calendar year, New Girl accounts are upgraded to the “Jean Junkie” tier for the remainder of that year and for the subsequent calendar year. Accounts are upgraded to the “Swank Girls Only” tier for the remainder of the year and for the subsequent calendar year upon earning 1,200 points within a calendar year. An account that fails to maintain point earning requirements to keep its “Jean Junkie” or “Swank Girls Only” tier status in the year after obtaining said status will revert to the “New Girl” tier.

Earning Points

Accountholders earn points on all purchases of eligible products or services on the Website, except for the purchase of gift cards. You must be signed into your account at the time of purchase to receive credit. Accountholders may also earn points for completing other eligible activities, which include: (1) creating an Account; (2) signing up for the SwankAPosh mailing list; (3) following SwankAPosh on Instagram, (4) liking SwankAPosh on Facebook; (5) referring eligible users, and (6) completing such other activities as SwankAPosh may specify from time to time. Point earning rates are variable and determined by tier. For a list of current earning rates and available point-earning activities, click here. For points made for purchases, points will be added to the user’s account within 72 hours after the product purchased ships. For all other points earned, points will be added to the user’s account within 24 hours.

Birthday Gifts

In addition to earning points, those enrolled in the Swank Rewards Program are eligible to receive a birthday gift each year. Click here for a current list of birthday gift offerings available by tier. Those with their birthday month and day entered into their Account profiles will receive a birthday gift coupon to the email address in their Account profile on the last day of the month before their birthday month begins. This coupon expires at the end of the month in which the user’s birthday occurs, and is subject to the terms and conditions contained on the coupon. We reserve the right to change the birthday gift offering at any time. If points are awarded by mistake, or for purchases which are subsequently returned or cancelled, SwankAPosh reserves the right to deduct these points from the member’s Swank Rewards Program account balance, even if this results in a negative point balance. When a member has a Swank Rewards Program account with a negative points balance, that user will continue to earn points for point-earning activities, but will be ineligible to redeem points until the balance is no longer negative.

Referral Program

In connection with our Swank Rewards program, may offer some users the opportunity to refer other customers to use our Service. This referral program (our “Referral Program”) is offered at our sole discretion, and is subject to change or cancellation at any time. Only individuals are eligible to participate in our Referral Program. Businesses, including lead generation services, are ineligible. We do not offer a Referral Program for affiliates. For an eligible user (an “Eligible User”) to earn rewards under our Referral Program, the Eligible User must make a Qualified Referral, which is defined as a referral of an individual who uses the Eligible User’s unique referral code while creating an account with us and then placing an order. Referrals made by Eligible Users to themselves, or to others within their household, are not Qualified Referrals. Each Eligible User may receive rewards for a maximum of twenty-three (23) Qualified Referrals per calendar year. Rewards will be issued to the Eligible User’s Swank Rewards Program account balance as points. Eligible Users are responsible for determining any and all tax liability resulting from receipt of promotional credits. If you choose to participate in the Referral Program, you must comply with all applicable “SPAM” laws. You may not distribute a referral link or code in a bulk email distribution. Any distribution of your referral code or link that could constitute a commercial email, or could violate any applicable SPAM law, is expressly prohibited and will result in your immediate disqualification of this program, and possibly suspension of your account. If we determine, in our sole discretion, that you have received points for a referral which was not for a Qualified Referral, we reserve the right to revoke the points that resulted from this referral, without any additional notice to you. If you believe that a technical error has resulted in you not receiving points to which you believe you should be entitled, please contact us at outreach@shopswankaposh.com. We may, at our sole discretion, choose to provide you with points notwithstanding the technical error.

Redeeming Points

You can use points in your Swank Rewards Program account balance to reduce the purchase price of qualifying products or services available on the SwankAPosh Website. A current list of point redemption rates is available here. Redemption rates are subject to change at any time, without notice. Redemption of points toward the purchase of products is subject to product availability. Points cannot be redeemed for cash and have no cash value. Points cannot be used toward the purchase of gift cards. Certain products and sales may be excluded from eligibility for point redemption. Where this is the case, SwankAPosh will indicate that points cannot be used toward purchasing a specific product or redeemed in combination with another sale or offer. Points cannot be redeemed toward sales tax or shipping and handling charges. You may redeem one (1) point voucher on a single purchase. Points cannot be redeemed in the same transaction in which they were earned.

Points Expiration

ALL POINTS EXPIRE AT THE END OF THE CALENDAR YEAR FOLLOWING THE TWELVE (12) MONTH ANNIVERSARY OF THE DATE ON WHICH THE POINTS WERE EARNED BY THE MEMBER. For example, points earned on October 1, 2022 would expire on December 31, 2023.

MOBILE APPS AND COMMUNICATIONS

Mobile Networks

When you access the Website or Products through a mobile network, your mobile provider’s rates and fees regarding data usage, minutes, and messaging may apply. Your network or device may have limitations that prevent all Apps or Products from working.

Apps and Software

When you use an App or other software product, you may be given the opportunity to turn on or off certain permissions for us to access your device or Third-Party accounts. For example, we may ask for permission to track your activity across Third-Party apps. For Apps, your ability to give or revoke such permissions is located within the general platform settings for your device and is not controlled by us.

By downloading and/or installing any App or other software Product, you consent to receive automatic software updates, where available.

Consent to Receive Electronic Messages

You consent to receive electronic communications from us, such as text messages, emails, and mobile push notification. Where required by law, we will provide you an additional, express opportunity to opt-in to receive such messages. You can always opt out of receiving electronic communications as follows:

For email, click on the “unsubscribe” link in the email and follow any subsequent directions.
For text messages, respond STOP.
For mobile push notifications, change your App permissions in the general settings for your mobile device.

For text messages, standard messaging rates will apply. You agree that all texts, calls, and prerecorded messages may be generated by automatic dialing systems.

INTELLECTUAL PROPERTY

Your License to Use the Website

So long as you comply with the terms of this Agreement (including all additional policies linked below), Company grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Website. This license does not allow you reproduce, modify, duplicate, copy, sell, resell, distribute, transmit, or otherwise exploit (for any commercial purpose or otherwise) any part of the Website—including the Content of other users—unless you first obtain our written permission. We reserve all rights not expressly granted in this Agreement. If you breach any provision of this Agreement, your license will automatically terminate.

Company’s License to Your Content

You are always the owner of your Content; however, we require a license from you to legally display your Content on the Website. Without this license, we could not allow you to upload any Content. Accordingly, you grant to Company a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display your Content throughout the world in any media now existing or in the future created.

Use of Your Content to Promote the Website

As we explain above, we may use your reviews and comments to promote the Website and Products. Aside from these reviews and comments, we will not use your Content in advertising without first obtaining your permission.

Our Intellectual Property

Our name, logo, Product names, the Website domain, and all content and other materials available through the Website other than your Content (collectively, the “Company IP”) are trademarks, copyrights, and intellectual property that are owned by Company and our Third Party licensors and suppliers. Nothing in this Agreement grants you any right, title, license, or interest in the Company IP. You shall not at any time, nor shall you assist others to, challenge Company’s right, title, or interest in, or the validity of, the Company IP.

Just as we ask you and other users to respect our intellectual property rights, we respect that of others. We follow the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA”).

If you believe Content on the Website violates your copyright, please immediately notify Company by emailing a DMCA takedown notice ("Infringement Notice") to us. Your Infringement Notice should include all the information described below:

Identification of your copyrighted work.
A description of the Content you believe infringes your copyright (the “Infringing Content”). Your description should include enough information about the nature and location of the Infringing Content to allow us to locate it on the Website.
Your name, address, telephone number, and email address.
The name, address, telephone number, email address, or other information (for example, username) of the user who posted the Infringing Content.
A written statement by you that:

you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by the copyright owner or by law; and
you declare, under penalty of perjury, that all the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.

Your signature, whether electronic or physical, as the copyright owner or a person authorized to act on behalf of the copyright owner.

You should send your Infringement Notice to takedowns@dmca.com with the subject line “DMCA Infringement Notice.” We will respond to all compliant Infringement Notices by taking any action required under the DMCA.

Please note that the DMCA requires that your Infringement Notice be submitted in good faith. This means you are required to evaluate whether the use of your Content on the Website is a “fair use,” as fair uses are allowed under the law. If you are not sure if the Infringing Content infringes your copyright, you should consult with an attorney. If you submit an Infringement Notice in bad faith, the user who posted the Infringing Content could have legal claims against you.

Infringement Notices are not anonymous. If we act in response to your Infringement Notice—such as by removing the Infringing Content—we will pass on your Infringement Notice to that user to afford them an opportunity to respond.

PROHIBITED CONDUCT

We impose certain restrictions on your use of the Website. You are prohibited from doing any of the following:

providing false, misleading, or inaccurate information to Company or any other person in connection with your Account or the Website;
impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity;
accessing the Account of any other user;
modifying or changing the placement and location of any advertisement posted through the Website;
harvesting or collecting information about users, including email addresses and phone numbers;
using any engine, software, tool, agent, or other device or mechanism (such as browsers, spiders, robots, avatars, AI, or intelligent agents) to harvest or collect information from the Website for any use, including any use on another website, app, or media;
accessing content or data not intended for you, or logging into a server or account that you are not authorized to access;
attempting to probe, scan, or test the vulnerability of the Website, or any associated system or network, or breaching security or authentication measures;
interfering with the use of the Website by any other user, host, or network, including (without limitation) by submitting malware, exploiting vulnerabilities, or through a DDoS attack;
forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Website (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers);
while using the Website, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising;
attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used in providing the Website, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions or clicks generated by specific Content and/or the Website;
creating additional Accounts to promote yourself, your business, or a Third Party (or another’s) business, or causing others to do so.

DISCLAIMERS AND LIMITATIONS

No Warranties

A warranty is a promise made by a business to a consumer about the business’s products or services. The law assumes a business has made certain warranties unless it disclaims them. When a business “disclaims” a warranty, it is the equivalent of saying “we are not making this promise to you.”

UNLESS WE EXPRESSLY WARRANT SOMETHING IN THIS AGREEMENT, WE DISCLAIM ANY AND ALL WARRANTIES TO YOU, INCLUDING EACH OF THE FOLLOWING WARRANTIES: ALL WARRANTIES ARISING BY OPERATION OF LAW OR OTHERWISE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, OR TITLE, OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES.

WE DO NOT WARRANT THAT THE WEBSITE OR SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. WE DO NOT WARRANT THAT YOUR ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED OR THAT THE WEBSITE WILL FUNCTION ERROR-FREE.

If you purchase a Product from us, it may come with its own warranty and disclaimers. In such event, the Product warranty and disclaimers will apply to your use of the Product. If the Product does not have its own warranty and disclaimer, then the warranties and disclaimers in this Agreement shall apply to your use of the Product.

Limitation of Liability

This section limits the types of claims you can bring against us. These limitations help us reduce the risks associated with providing the Website, Services, and Products—in fact, we could not provide them otherwise.

TO THE FULLEST EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU FOR ANY CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST CONTENT OR OTHER DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FAILURE TO MEET ANY DUTY, INCLUDING GOOD FAITH OR REASONABLE CARE. THESE LIMITATIONS APPLY REGARDLESS OF THE FORESEEABILITY OF SUCH DAMAGES.

MISCELLANEOUS PROVISIONS

Minimum Age

You represent and warrant that you are at least 18 years old (or the age of majority in your jurisdiction, if different than 18).

Corporate Use

If you are using the Website on behalf of a company, you further represent and warrant that you are authorized to act on behalf of that company, including by agreeing to binding contracts.

Electronic Notice

You consent to receive notices, disclosures, and other communications electronically at the email address linked with your Account. You agree that these electronic notices satisfy any legal requirements that such communications be in writing.

Survival

The provisions of this Agreement which, by their nature, should survive termination shall survive such termination, including the sections entitled ARBITRATION, INTELLECTUAL PROPERTY, DISCLAIMERS AND LIMITATIONS, and MISCELLANEOUS PROVISIONS.

Severability

If any provision of this Agreement is declared invalid, void, or unenforceable, then that provision is severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions.

No Waiver

A waiver by either you or Company of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.

Independent Contractors

You understand and agree that you and Company are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.

CHANGES

Internet technology and the applicable laws, rules, and regulations change frequently. We may need to make changes to this Agreement and the Privacy Policy from time to time, including to keep up with changes in the law. If we make a material change, we will notify you in advance so you can decide whether you want to continue using the Website after the change takes effect. Your continued use of the Website after the change constitutes your consent to the updated Agreement or Privacy Policy. It is up to you to keep the email address associated with your Account up to date so that you don’t miss any such notifications.

OTHER TERMS AND POLICIES

We take your privacy very seriously. Our Privacy Policy (the “Privacy Policy”) is a part of this Agreement and is incorporated by reference. The Privacy Policy contains details about how information is collected from you through the Website, how it is used and shared with our service providers, and what your rights are with respect to such information. The Privacy Policy is available at https://shopswankaposh.com/policies/privacy-policy

In addition to the Privacy Policy, the following additional policies govern your use of and interactions initiated through the Website, which are incorporated into this Agreement by reference:

https://shopswankaposh.com/pages/return-policy-1

https://shopswankaposh.com/pages/terms-of-service

https://shopswankaposh.com/pages/ordering-payments