Terms Of Service

Last Updated: 3/24/2015

Welcome to the Primary Kids, Inc. ( "Primary Kids" ) website located at primary.com (the "Site"). Please read these Terms of Service (the "Terms") carefully because they govern your use of our Site and our children’s clothing retail services accessible via our Site. To make these Terms easier to read, the Site and our services are collectively called the "Services."

Agreement to Terms

By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, please do not use the Services.

Changes to Terms or Services

We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time, we may modify, change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

Who May Use the Services

Eligibility

You may use the Services only if you are 18 years or older and capable of forming a binding contract with Primary Kids and are not barred from using the Services under applicable law.

Registration and Your Information

If you want to use certain features of the Services, including making a purchase via the Site, you’ll have to create an account ( "Account" ). You can do this via the Site when you first check out. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

Feedback

Whether you are an Account holder or a visitor (each, a "User" ), we welcome feedback, comments and suggestions for improvements to the Services ( "Feedback" ). You can submit Feedback by emailing us at help@primary.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

Privacy Policy

Please refer to our Privacy Policy (www.primary.com/privacy) for information on how we collect, use and disclose information from our Users.

Merchandise Availability

We cannot guarantee the availability of the merchandise listed on our Site or that merchandise will always be in stock. If merchandise is not available by the time we are processing your order, we will notify you of this via the e-mail you have provided when setting up your Account. We reserve the right to limit quantities in certain circumstances. You will receive a shipping confirmation via e-mail once the merchandise you purchase has shipped. Primary Kids only ships items within the continental US. No shipments can be made to PO Box addresses, Alaska, Hawaii and Puerto Rico, United States territories, or addresses outside of the United States. All prices displayed via the Services are quoted in U.S. dollars, unless otherwise indicated. Please note that while we have tried to accurately display the colors of products, the actual colors you see will depend on your monitor and may not be accurate. For the products and/or services available via our Services, certain descriptions (such as approximate measurements and/or colors) are provided for convenience only and may not accurately represent the product and/or service in question. The risk of loss and title for items purchased by you pass to you upon our delivery of the items to the carrier.

Shopping Cart

Items in your shopping cart reflect the current price displayed on the item's product details page. Please note: This price may differ from the price displayed when the item was first placed in your shopping cart.

Pricing Errors

We work hard to ensure the accuracy of pricing. Despite our efforts, pricing errors may still occur. If an item's price is higher than the price displayed, we will cancel the order of that item and notify you of the cancellation.

Content and Content Rights

For purposes of these Terms: (i) "Content" means information or other materials that are posted, generated, provided or otherwise made available through the Services, including but not limited to text, graphics, images, software, videos, or works of authorship of any kind; and (ii) "User Content" means any Content that you (whether you are an Account holder or a visitor) provide to be made available through the Services, including but not limited to any opinions expressed by you. Content includes without limitation User Content.

Content Ownership, Responsibility and Removal

Primary Kids does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Primary Kids and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

Rights in User Content Granted by You

By making any User Content available through Services you hereby grant to Primary Kids a non-exclusive, worldwide, perpetual, irrevocable royalty-free license with the right to grant sublicenses to use, copy, modify (for formatting purposes only), publicly display, publicly perform and distribute copies of your User Content in connection with operating and providing the Services and Content to you and other Users. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Primary Kids on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Any opinion provided by our Users is that of the User expressing such an opinion and does not reflect the opinion of Primary Kids.

Rights in Content Granted by Primary Kids

Subject to your compliance with these Terms, Primary Kids grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.

General Prohibitions and Primary Kids’ Enforcement Rights

You agree not to do any of the following:

Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Services or any individual element within the Services, Primary Kids’ name, any Primary Kids trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Primary Kids’ express written consent;
Access, tamper with, or use non-public areas of the Services, Primary Kids’ computer systems, or the technical delivery systems of Primary Kids’ providers;
Attempt to probe, scan or test the vulnerability of any Primary Kids system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Primary Kids or any of Primary Kids’ providers or any other third party (including another user) to protect the Services or Content;
Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Primary Kids or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Primary Kids trademark, logo URL or product name without Primary Kids’ express written consent;
Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content; Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.

Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. We also reserve the right to refuse services to any User and/or may require verification of information prior to the acceptance or shipment of any order.

DMCA/Copyright Policy

Primary Kids respects copyright law and expects its users to do the same. It is Primary Kids’ policy to terminate in appropriate circumstances Account holders who repeatedly infringe the rights of copyright holders. Please see the Primary Kids Copyright Policy at primary.com/copyrightpolicy for further information.

Links to Third Party Websites or Resources

The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

Termination

We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. The following Sections will survive any termination, discontinuation or cancellation of Services or your Account: Feedback; Content Ownership, Responsibility and Removal; Warranty Disclaimers; Indemnity; Limitation of Liability; Termination; Dispute Resolution; and General Terms.

Warranty Disclaimers

THE SERVICES, MATERIALS AND CONTENT PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. YOUR USE OF THE SERVICES AND PURCHASE OF ANY PRODUCTS IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THE SITE AND VIA THE SERVICES ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS (IF ANY). We make no warranty that the Products and/or Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content, including but not limited to the availability and/or pricing of products or services sold via the Services.

Indemnity

You will indemnify, defend and hold Primary Kids and its officers, directors, employee and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.

Limitation of Liability

NEITHER PRIMARY KIDS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PRIMARY KIDS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL PRIMARY KIDS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO PRIMARY KIDS FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO PRIMARY KIDS, AS APPLICABLE. IF YOU HAVE A PROBLEM WITH THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICES. IF THERE IS A PROBLEM WITH A PRODUCT YOU HAVE PURCHASED THROUGH THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT IN ACCORDANCE WITH OUR REFUND & EXCHANGE POLICY AT primary.com/help. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PRIMARY KIDS AND YOU.

Dispute Resolution

Governing Law

These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.

Agreement to Arbitrate

You and Primary Kids agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, "Disputes" ) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action" ). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Primary Kids are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Primary Kids otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association ( "AAA" ) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules" ) then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. ( The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822 .) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure

Unless you and Primary Kids otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Primary Kids submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Primary Kids will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees

Fees Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Primary Kids will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes

Notwithstanding the provisions of the "Changes to Terms or Services" section above, if Primary Kids changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to help@primary.com within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Primary Kids’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Primary Kids in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

General Terms

These Terms constitute the entire and exclusive understanding and agreement between Primary Kids and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Primary Kids and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Primary Kids’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Primary Kids may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. Any notices or other communications provided by Primary Kids under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Primary Kids’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Primary Kids. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of products and services available through our Services arising from any event beyond our reasonable control, whether or not foreseeable, including, but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.

Contact Information

If you have any questions about these Terms or the Services, please contact Primary Kids at help@primary.com .

Collection: Encanto

Collection: Encanto