1. Acceptance of Terms & Conditions
These Terms and Conditions govern your use of the CLERKENWELL Watch Co. website (the “Site”) and all CLERKENWELL Watch Co. services and sales of products (the “Service”). By using the Service, you acknowledge and represent that you have read and understand these Terms and Conditions and that they become a binding agreement (“Agreement”) between you and CLERKENWELL Watch Co., you agree to receive all communications from CLERKENWELL Watch Co. under this Agreement electronically via email, you agree to keep your current email address updated under Profile on the Site at all times and you agree that you will be deemed to have received any notice we send to that email address. By visiting or browsing the Site, you accept these Terms and Conditions and any modifications made to them from time to time.
2. Modifications to Terms and Conditions
CLERKENWELL Watch Co. (“we,” “us,” and “our”) reserves the right, upon notice to you via email to change or terminate this Agreement. You agree that your use of the Service after notice of change to these Terms and Conditions means that you accept the changes; you also agree that, if you do not return outstanding items and close your CLERKENWELL Watch Co. account within thirty (30) calendar days of such notice, you accept the changes. Please check this section of the Site before using the Site to determine whether a change has been made to these Terms and Conditions. If you do not agree to any changes in the Terms and Conditions as they may occur, please arrange to terminate your account (a) by notifying CLERKENWELL Watch Co.of your unwillingness to accept the changes to the Terms and Conditions by emailing email@example.com or calling us at (312) 870-0391 and (b) by immediately returning all outstanding items and discontinuing your use of the Service and the Site.
3. The CLERKENWELL Watch Co. Service
The Service allows registered members to access the Site and purchase or borrow products from CLERKENWELL Watch Co. in accordance with these Terms and Conditions. With payment of the membership fee, the member can choose products to borrow from our expansive on-line selection, and have them shipped to the member’s address. All of this with no due dates or limits on the number of times a member can borrow. However, we reserve the right to ask for a deposit and/or limit the number of items that a member may borrow at any time and/or to require the return of any or all borrowed items in your possession in the event you fail to make required payments on time or in the event other factors arise which, in our sole discretion, increase the risk of non-timely payment by you. The currently available membership options, and the quarterly, monthly and weekly borrowing rates, are outlined in detail on the Site. Also, the current shipping policies governing the delivery and return of products are detailed on the Site. Delivery time for products you have selected to borrow may vary based upon (a) inventory availability, (b) your delivery address, (c) when you place an order, and (d) other circumstances impacting delivery. Accordingly, CLERKENWELL Watch Co. makes no guarantees as to actual delivery time. CLERKENWELL Watch Co.does provide an additional 6-12 days depending upon the delivery address and members’ borrowing period. The risk of loss for items shipped passes to you upon our delivery to the carrier. We will send you an email letting you know when your product is shipped. If you return a product in a damaged or dirty condition that exceeds normal wear and tear, as determined by CLERKENWELL Watch Co. in its sole discretion, you agree that CLERKENWELL Watch Co. may charge your credit card and collect a replacement fee for such product (except to the extent the loss is covered by insurance you may have purchased from CLERKENWELL Watch Co. to cover damage to the product). The product replacement fee varies depending on the specifics of each watch and is disclosed to you at the time of borrowing. You may purchase insurance at the time you order a product. The applicable insurance fee varies depending on the watch or other item.
4. Becoming a Member and Obtaining an Account
Before you can begin use of the Service, you must register as a member through the Site and obtain an account (“Account”). By registering as a member through the Site, you give us permission to obtain credit information from consumer credit-reporting agencies before you obtain an Account and at any time during your membership. You must be 18 years of age or older to register as a member and use the Service. Your membership will automatically renew for successive membership periods, unless you cancel your membership or your membership is otherwise terminated under these Terms and Conditions. You agree to provide true, accurate, current and complete information about yourself as prompted by the Site’s registration form (such information being the “Registration Data”), and you agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have any reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your Account and refuse to offer you any and all current or future use of the Service and the Site. You are responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer. You are solely responsible for any activity related to your Account. If you suspect any unauthorized use of your Account, notify us immediately. In order to provide you with ease of access to your Account, we may place a cookie (a small text file) on the computers from which you access the Site. When you revisit the Site, this cookie will enable us to recognize you as the Account holder and allow you to more easily access your Account.
When you join as a member you will be required to provide CLERKENWELL Watch Co. with accurate, complete and current credit card information for a valid credit card that you are authorized to use. By signing up for the Service, you authorize CLERKENWELL Watch Co. or its agent to bill your credit card the applicable membership fees, per-item or borrowing fees, shipping charges, any and all applicable taxes, and any other charges you may incur in connection with your use of the Service. The applicable membership fees will be charged to your credit card on the date your membership is created and each month thereafter, on the calendar day corresponding to the commencement of your membership. If your membership begins on the 29th, 30th or 31st of any month, CLERKENWELL Watch Co. will charge your credit card on the 28th day of each subsequent month. Other fees will be charged to your credit card as you incur them. If CLERKENWELL Watch Co. does not receive payment from your credit card provider or if your credit card expires or is rejected, you agree to pay all amounts due upon demand. Following any such non-payment, we may require you to provide a second valid credit card before continuing to use the Services and you authorize CLERKENWELL Watch Co. to charge outstanding fees and other amounts due us against any credit card you have on file with us. CLERKENWELL Watch Co. reserves the right to take all steps necessary to collect amounts due from you, including but not limited to legal action and/or using third party collection agencies. CLERKENWELL Watch Co. reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. We reserve the right to determine whether your credit card(s) is/are pre-authorized to accept a minimum charge equal to your membership fee, watch rental or both. In the event we feel the amount of available credit is not sufficient to cover these amounts, we may request the immediate return of all outstanding items and/or that you provide a second valid credit card before continuing to use the Services. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within 90 days after they first appear on your Account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. We may modify the price, content, or nature of the Service at any time. If we modify any of the foregoing terms, you may cancel your membership. We may provide notice of any such changes by email, notice to you upon log-in, or by publishing them on the Site.
6. Cancellation: Costs and Refunds
You may cancel your membership at any time by contacting customer service by phone, email, or live help. In some cases, you may be required to call customer service. You must cancel your membership before it renews for the next month and return all borrowed watches to avoid a charge for the next month’s monthly membership fee. Upon receipt of your cancellation request, we will terminate your Account at the end of the then-current membership period, provided that you have returned all outstanding products and paid for any unreturned or damaged products. If you paid discounted monthly membership or other fees based upon your commitment to a membership of a particular length or other specific terms, in the event you cancel your membership early or fail to fulfill agreed upon terms, your credit card will be charged for the full, non-discounted fees and charges for the entire period you were a member. We do not offer refunds or credits on any CLERKENWELL Watch Co. Memberships. You will be given 5 days from the date you request cancellation to return all outstanding borrowed products or satisfy any payments for any unreturned or damaged products. Failure to return such products will result in charges to your credit card for continued monthly membership and other charges until all borrowed products have been returned.
7. Actual Damages, Liquidated Damages, Attorneys’ Fees and Costs Actual Damages.
In the case of a failure to pay any debts or to return any item(s) when due to CLERKENWELL Watch Co. (hereinafter, a “default”), you will be liable to CLERKENWELL Watch Co. for its actual damages, including but not limited to the then-current rental payment for each item until said item is received by CLERKENWELL Watch Co. in an undamaged condition. If said item has not been returned in an undamaged condition before the expiration of 30 days after the date of default, then CLERKENWELL Watch Co. at its option may alternatively charge you the msrp as maintained by CLERKENWELL Watch Co. for that item, plus 30 days rent from the date of default, or seek to recover the wrongfully-retained item plus all rent owed to the date of recovery of the undamaged item. If suit is filed, CLERKENWELL Watch Co. may assert these measures of damage simultaneously. If an item is not recovered, or if it is recovered in a damaged condition, then CLERKENWELL Watch Co. will charge you the msrp as maintained by CLERKENWELL Watch Co. for said item, plus 30 days rent from the date of default. Liquidated Damages. CLERKENWELL Watch Co. spends significant internal resources on its efforts to reduce and recover losses flowing from customer non-payments, from the theft and/or wrongful retention of its products, and from other improper, negligent or fraudulent acts. Because the amount of these internal losses are extremely difficult to calculate, you agree that CLERKENWELL Watch Co. is also entitled to collectliquidated damages-in addition to its actual damages-if CLERKENWELL Watch Co. commences collection or legal action to recover any amounts due from you, and/or to recover property wrongfully retained by you. In all cases, the liquidated damages will consist of a $500 per-item charge for each item that remains unpaid and/or unreturned at the time that CLERKENWELL Watch Co. commences collection or legal action, which sum is intended to compensate for the expenditure of CLERKENWELL Watch Co.’s internal resources as a result of your breach of contract, fraud or other wrongful or negligent acts. In cases where CLERKENWELL Watch Co. has been unsuccessful in recovering its merchandise in an undamaged condition prior to the entry of a judgment against you, then CLERKENWELL Watch Co.’s liquidated damages will also include an additional 30-day rental charge to cover the period from day 91 through day 180 following your default. This second, 30-day rental period is intended to provide a reasonable estimate of CLERKENWELL Watch Co.’s additional lost rental income caused by your wrongful retention of CLERKENWELL Watch Co.’s property. It will be charged to you at the same rate as was actually charged for the first 30-day default rental period. You understand and agree that the liquidated damages of (i) $500 per item plus (ii) the second, 30-day rental period for items that are not recovered in an undamaged condition, are not a penalty, but instead are reasonable and necessary estimates of the sums needed to compensate CLERKENWELL Watch Co. for the loss of its internal resources and for the loss of its future rental income. Attorneys’ Fees, Costs and Interest. If CLERKENWELL Watch Co. commences litigation to recover its property from you, to recover actual damages, and/or to recover liquidated damages, you agree that the substantially prevailing party will be entitled to recover its reasonable attorneys’ fees and expenses of litigation. You further agree that CLERKENWELL Watch Co. will be entitled to recover prejudgment interest on its actual damages and its liquidated damages from the date of default to the date of judgment entry at the rate of 12% per annum. Reservation of Rights. CLERKENWELL Watch Co. expressly reserves its right to seek additional elements of actual damages other than those expressly identified above.
The Site may allow you and other third parties to post reviews or comments concerning the Service or the products we distribute. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties on the Site are those of the respective authors or producers and not of CLERKENWELL Watch Co., or its shareholders, directors, officers, or employees. CLERKENWELL Watch Co. may review and delete any content, in whole or in part, that in the sole judgment of CLERKENWELL Watch Co.violate these Terms and Conditions or which might be offensive, illegal, or that might violate the rights of or harm any third parties. Nonetheless, under no circumstances will CLERKENWELL Watch Co., or its shareholders, directors, officers, directors, or employees be held liable for any loss or damage caused by your reliance on information obtained through the Site. It is your responsibility to evaluate the information, opinion, advice, or other content available through the Service or the Site. We are free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (each, a “Submission”), including, without limitation, responses to questionnaires or through postings on message boards on the Site without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Site and the Service. Furthermore, by posting any Submission on the Site, submitting information to us, or in responding to questionnaires, you grant us a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to display, use, perform, reproduce, modify, distribute and create derivative works of the Submission or information submitted in any media, software, or technology of any kind now existing or developed in the future. By posting or providing a Submission or information, you represent and warrant that public posting and use of your Submission or information by CLERKENWELL Watch Co. will not infringe on or violate the rights of any third party. Be advised that we do not accept unsolicited materials or ideas for use or publication, and are not responsible for the similarity of any of our content to materials or ideas transmitted to us. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against us and our affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the idea you sent.
10. Use Restrictions
You will not use the Site or Service to: (a) upload, post, email, or otherwise transmit any Submission that contains personally identifying information (such as actual names, phone numbers, mailing addresses, email addresses and url), unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (d) upload, post, email, or otherwise transmit any Submission that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (e) upload, post, email or otherwise transmit any Submission that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (f) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation; (g) upload, post, email, or otherwise transmit any material that contains 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; (h) interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site; (i) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (j) “stalk” or otherwise harass another; (k) write comments that in any way refer to persons under 18 years of age; or (l) collect or store personal data about other users.
11. Access Limits
Unless otherwise specified, the content on the Site is for your personal and non-commercial use; CLERKENWELL Watch Co. grants you a limited license to access the Site solely for that purpose. You may not download (other than through page caching necessary for personal use), modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, offer for sale, or use in any other way the Service, or any information contained on, or obtained from, the Site without the express written consent of CLERKENWELL Watch Co. Any and all unauthorized uses of the Site or the contents therein will terminate the limited license granted to you. Without our express written consent, you may not (a) use any automated means to access the Site or collect any information from the Site (including without limitation robots, spiders or scripts), or (b) frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. This means, among other activities, that you agree not to engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information.
12. Disclaimers of Warranties; Limitations on Liability
You agree to indemnify and hold CLERKENWELL Watch Co., its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Service in violation of these Terms and Conditions and/or arising from a breach of these Terms and Conditions.
14. Intellectual Property
CLERKENWELL WATCH CO. is a trademark of CLERKENWELL Watch Co.. All CLERKENWELL Watch Co. graphics, logos, page headers, button icons, scripts and service names are trademarks or trade dress of CLERKENWELL Watch Co.. Any trademarks not owned by CLERKENWELL Watch Co. that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by CLERKENWELL Watch Co. All content and compilation thereof on the Site, including, but not limited to, text, graphics, logos, designs, photographs, button icons, images, data compilations, and software, is the property of CLERKENWELL Watch Co., its licensors, or its product suppliers, and is protected by United States and international copyright laws. No material, including, but not limited to, the material listed above, should be reproduced or used without our express written permission.
You agree that we, in our sole discretion, may terminate your password, Account, or use of the Service or the Site, and remove and discard any of your Submissions from the Site, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms and Conditions. Also, we may, in our sole discretion and at any time, discontinue providing the Service or the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Service or the Site may be effected without prior notice, and you acknowledge and agree that we may immediately suspend, deactivate or delete your Account and all related information and Submissions made from your Account and bar any further access to such information or to the Site. Further, you agree that we will not be liable to you or any third-party for any suspension or termination of the Service or your access to the Site.
16. Links and Advertising
We may provide, or third parties may provide, links to other Web sites or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us, with respect to such sites. CLERKENWELL WATCH CO. IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEBPAGES THAT ARE CONTAINED OUTSIDE THE SITE. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or partners on the Site.
17. Service Tests
CLERKENWELL Watch Co. tests aspects of its Service from time to time. CLERKENWELL Watch Co. reserves the right to include you in such tests without notice.
18. Governing Law, Jurisdiction, Venue and Arbitration
These Terms and Conditions are governed in all respects by the laws of the State of Illinois as such laws are applied to agreements entered into and to be performed entirely within Illinois between Illinois residents. BY ACCEPTING THIS AGREEMENT AND USING THE SERVICE, YOU ACCEPT AND CONSENTTO THE PERSONAL JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS IN COOKCOUNTY, ILLINOIS, FOR ANY COURT ACTION OR PROCEEDING DEEMED NECESSARY BY CLERKENWELL WATCH CO. TO COLLECT AMOUNTS DUE HEREUNDER, TO RECOVER ITS PROPERTY, AND/OR TO PROTECTCLERKENWELL WATCH CO. FROM THEFT OR FRAUD. AT CLERKENWELL WATCH CO.’S SOLE OPTION, CLERKENWELL WATCH CO.MAY ALSO COMMENCE ANY COURT ACTION OR PROCEEDING TO COLLECT AMOUNTS DUEHEREUNDER, TO RECOVER ITS PROPERTY, AND/OR TO PROTECT CLERKENWELL WATCH CO. FROM THEFT ORFRAUD, IN THE FEDERAL OR STATE COURTS IN THE STATE WHERE YOU RESIDE, OR IN THE STATEWHERE THE PROPERTY IS LOCATED. Any other controversy or claim arising out of or relating to these Terms and Conditions, the Service, the Products, or the Site shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Cook County, Illinois, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by Illinois law. Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.
19. Claims of Copyright Infringement
It is our policy to respect the intellectual property rights of others. We do not promote, foster or condone any infringing activity. If you believe your work has been copied in a way that constitutes copyright infringement, are aware of any infringing material on the Site, or know of someone who is making unauthorized use of the content of the Site, please contact our registered agent for notice of copyright infringement under the DMCA and notify us of your concern by submitting a written notice to us at the following address: 300 Lakeside Dr., Oakland, CA 94612
All applicable local, city, and state taxes are your responsibility. You agree to pay these taxes.
CLERKENWELL Watch Co.’s failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. By using the Site or the Service, you consent to receiving electronic communications from CLERKENWELL Watch Co. These communications will include notices about your Account (e.g., shipping and receiving emails and other transactional information) and information concerning or related to the Service. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. CLERKENWELL Watch Co. is excused for any failure to perform to the extent that its performance is prevented by any reason outside of its control. These Terms and Conditions comprise the entire agreement between you and CLERKENWELL Watch Co. and supersede all prior agreements between the parties regarding the subject matter contained herein. Effective January 10, 2010