Last Updated:  July, 2016

TERMS OF USE

BY USING THIS HUSH MOBILE APPLICATION, INCLUDING THE SERVICE (AS DEFINED BELOW) EMBODIED IN THE MOBILE OR DESKTOP APPLICATION (COLLECTIVELY, THE “APPLICATION”), YOU (THE “USER”) ACCEPT THESE TERMS OF USE (“TERMS”).  THESE TERMS CONSTITUTE A BINDING AGREEMENT, GOVERNING USE OF THE APPLICATION, BETWEEN USER AND HUSH, INCLUDING ITS SUBSIDIARIES, RELATED, AND AFFILIATED COMPANIES (INDIVIDUALLY OR COLLECTIVELY “HUSH”).  BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, USER ACKNOWLEDGES AND AGREES TO BE BOUND BY THESE TERMS.  SHOULD USER NOT ACKNOWLEDGE AND AGREE TO THESE TERMS, USER MUST IMMEDIATELY UNINSTALL THIS APPLICATION AND DISCONTINUE ITS USE.  THESE TERMS ARE ALSO AVAILABLE ON THE HUSH WEBSITE (
HTTP://WWW.SHOPHUSH.COM) AND IN THE APPLICATION’S ABOUT SECTION.  CONTINUED USE OF THE APPLICATION SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY CHANGES TO THEM.

Service

 Hush is a marketplace that allows users to purchase the hottest apparel from the fashion world’s top designers at discount prices (the “Service”).

 

Age Restriction

Only individuals thirteen (13) years of age or older may use the Application.  Users between the ages of thirteen (13) and eighteen (18) must review these Terms with a parent or legal guardian to ensure the parent or legal guardian acknowledge and agree to these Terms.  Should User’s parent or legal guardian not acknowledge and agree to these Terms, User must immediately uninstall this Application and discontinue its use.

Incorporation of Related Terms

These Terms incorporate and supplement the Apple, Inc. (“Apple”) Terms and Conditions (available at
http://www.apple.com/legal/itunes/us/terms.html#service), including without limitation the Licensed Application End User Agreement therein (“Apple Terms”). These Terms incorporate and supplement our Privacy Policy (available in the settings page of the Application).

Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.

End-User License

Subject to these Terms, Hush grants the User a personal, non-exclusive, non-transferable, non-sublicensable, limited and revocable license to use the Application for personal use only on an iPhone, iPad or iPod Touch (“Apple Device”) owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms (“User License”).  Any use of the Application in any other manner, including, without limitation, resale, reverse-engineering, disassembling, redistribution, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Application (“Content”) is prohibited.  This Agreement and User License also governs any updates to, or supplements or replacements for, this Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.


The license is effective until terminated by you or Hush, with or without written notice. Your rights under the User License will terminate automatically without notice from Hush if you fail to comply with any Terms or terms of the User License. Upon termination of the license, you shall cease all use of the Application and destroy all copies, full or partial, of the Application.

Using the Service  

 

A customer (the “Customer”) may use the Application to purchase items directly from vendors (each referred to as a “Vendor”). The Customer and Vendor are each referred to as a User in the Terms.

 

Important Disclaimers  

 

Hush does not participate in the provision of products offered by or any content created by any Vendor, and does not represent or endorse and will not be responsible for: (a) the performance of any Vendor; (b) the safety, quality, accuracy, reliability, integrity or legality of any products offered or provided by a Vendor; or (c) the truth or accuracy of any statements made by a Vendor, including the description or photos of any products offered or provided by a Vendor.

 

Hush does not provide fulfillment services.  All Vendors on the Application are responsible for shipping products on the time frames provided within the application.   All items that are purchased on the Application are made pursuant to a shipping contract between

 

Hush disclaims all liability for the actions, errors or omissions of Vendors.

 

Refunds

 

Each Vendor shall determine the refund policy for any products offered or sold through the Application.  All refunds are subject to additional charges for shipping and taxes.  The Customer will be informed of the refund policy prior to purchase.

 

Pricing

 

Each Vendor shall determine the pricing for any products offered or sold through the Application.  All pricing is subject to additional charges for shipping and taxes.  The Customer will be informed of all such additional charges prior to the completion of any purchase

 

Hush generally does not charge a Customer’s credit card until after the Customer has entered the shipping process for the order.

 

User Information

Application features, such as mobile payments, feedback, account management, and interaction with social media sites, may use, maintain, or transmit User’s personal information, including, without limitation, user names, passwords, proper names, email address, address, location, financial information (including credit card information), GPS location information, and information for and from third-party e-mail and social-media accounts (collectively “User Information”).  By acknowledging and agreeing to this Agreement, or by using the Application, User consents to the transmission of User Information to Hush, including its agents and third-party partners (including Vendors), and consents to Hush, including its agents and third-party partners (including Vendors), receiving, collecting, storing, processing, transmitting, and using User Information for Application functionality and for the purposes disclosed in one or more of the Privacy Policies identified in this Agreement.

The User is, however, solely responsible for the confidentiality and security of User Information sent from or stored on the Apple Device by the Application.  The User is also solely responsible for all transactions and activities undertaken by anyone or anything registered in the User’s name, whether authorized or unauthorized.  The User agrees to immediately notify Hush of any suspected unauthorized transactions associated with the Application or any other breach of security.  Hush shall not be responsible for any losses arising from the financial loss or theft of User Information due to unauthorized or fraudulent transactions related to the Application.  Users shall be solely responsible for taking precautionary steps to protect User Information stored on the Apple Device, including without limitation password-protecting the Apple Device and employing Apple’s remote-wipe feature.

 

You agree that Hush, its service providers and/or others involved in creating or providing the Application may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Application.  Hush, its service providers, and/or others involved in creating or providing the Application may use this information, as long as it is in a form that does not personally identify you, to improve the Application or to provide services or technologies to you.

Prohibited Uses

Use of the Application is limited to the contemplated functionality.  User shall not (or shall not use the Application to):  

1.    harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
2.    engage in any unlawful, fraudulent, or deceptive practices;
3.    use technology or other means to access unauthorized content or non-public spaces;
4.    use or launches any automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public spaces;
5.    attempt to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

6.    forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

7.    store any Content that User does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);

8.    store any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
9.    attempt to damage, disable, overburden, or impair Hush servers or networks;
10.  attempt to gain unauthorized access to a Hush computer network;
11.  attempt to gain unauthorized access to Hush user accounts;
12.  encourage conduct that would constitute a criminal offense, or that gives rise to civil liability;
13.    violate these Terms in any manner; or

14.    fail to comply with applicable third-party terms and conditions or other third-party policies (collectively “Acceptable Use”).

Hush reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Application, that Hush reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.

Stored User Content

Hush acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Service in or to any Content that you store in the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You agree that you are solely responsible for protecting and enforcing those rights and that Hush has no obligation to do so on your behalf.

 

Hush hereby grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Hush as part of the Service, for the sole purpose of enabling you to use and enjoy the benefit of the Service as permitted by these Terms, until your rights are terminated in accordance with these Terms.

User-Generated Content

 

If a User posts content or submits material, such User grants Hush 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 such content throughout the world in any media. User grants Hush and its sublicensees the right to use the name that User submits in connection with such content, if they choose. User represents and warrants that it owns or otherwise controls all of the rights to the content that such User posts; that the content is accurate; that use of the content does not violate this policy and will not cause injury to any person or entity; and that User will indemnify Hush for all claims resulting from content that User supplies. Hush has the right but not the obligation to monitor and edit or remove any activity or content. Hush takes no responsibility and assumes no liability for any content posted by User or any third party.

 

Ratings

 

User acknowledges and understands that both Customers and Vendors will be rated by other Customers and Vendors that they transact with while using the Service and that User shall receive and be entitled to give ratings and feedback regarding other users.  User acknowledges that not all ratings and feedback will be positive and agrees not to bring any claims based upon ratings or feedback that they receive.  User further agrees not to give slanderous or fabricated ratings and that all ratings given by User will be given in good faith based on such User’s bona fide review of such User’s experience.  

 

Third-Party Copyrightable Content

 

Hush respects the intellectual property of others.  User agrees to abide by all intellectual property rights of third parties (including rights of such parties in scripts, works of authorship and other written materials.   If any person believes that their work has been copied in a way that constitutes copyright infringement, please follow the procedure below.

 

Hush has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Application. Hush has adopted a policy that provides for the immediate suspension and/or termination of any User who is found to have infringed on the rights of Hush or of a third party, or otherwise violated any intellectual property laws or regulations. Hush’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Hush to delete, edit, or disable the material in question, you must provide Hush with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Hush to locate the material; (d) information reasonably sufficient to permit Hush to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Provider’s designated agent at:

 

Hush, Inc.

461 2nd Street, Unit 330

San Francisco, CA 94107

Attn: CEO

(408) 655-5751

hello@shophush.com

 

All Providers agree to designate Hush as its designated agent to receive claims related to copyrightable content.

 

Third-Party Providers

 

Hush may from time to time engage certain affiliates or other third parties to provide all or part of the Service to you, and you hereby acknowledge and agree that such third party involvement is acceptable. You understand that Hush, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.

 

Hush may from time to time include as part of the Service computer software supplied by third parties, which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Hush expressly disclaims any warranty or other assurance to you regarding such third party software.

 

Accuracy of Representation 

 

The information furnished by User must be accurate, complete, and not misleading. User agrees to not misrepresent in any way, whether material or not, any aspect of User’s identity when using the Application.

 

Indemnification

User agrees to indemnify and hold harmless Hush, including its agents, affiliated companies, employees, contractors, directors, and officers, and anyone involved in creating or providing the Application, from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) occurring from or related to the use or misuse of the Application, violation of these Terms, or violations of any rights of a third party, or any allegation thereof.  Hush reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses.

No Warranties

HUSH IS PROVIDING THE APPLICATION, SERVICE AND CONTENT TO THE USER “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED.  THE USER IS USING THE APPLICATION AT HIS OR HER OWN RISK.  TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, HUSH DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APPLICATION IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING OR FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE APPLICATION BY THE USER IS IN COMPLIANCE WITH LAWS, OR THAT USER INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED.

No Liability

TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL HUSH OR ITS AGENTS OR ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION (A) BE LIABLE TO THE USER WITH RESPECT TO USE OF THE APPLICATION; AND/OR (B) BE LIABLE TO THE USER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER-GENERATED INFORMATION, STORED USER CONTENT, THE INABILITY TO USE THE APPLICATION, OR DEVICE FAILURE OR MALFUNCTION. THE USER’S SOLE REMEDY IS TO CEASE USE OF THE APPLICATION.  HUSH, ITS AGENTS AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION OR CONTENT SHALL NOT BE LIABLE EVEN IF ANY OF THEM OR ANY AUTHORIZED REPRESENTATIVE OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.

In the event that applicable law does not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or other damages, in no event shall Hush, its agents or anyone involved in creating or providing this Application or Content be liable for damages, losses, and/or causes of action exceeding the amount, if any, paid by User for use of the Application or $100, whichever is less.

Intellectual Property

Hush, the Hush logo, and other Hush trademarks, service marks, graphics and logos used in connection with the Application are trademarks or registered trademarks of Hush (collectively “Hush Marks”).  Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks of their respective owners (collectively “Third-Party Marks”).  The Hush Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Hush or the applicable trademark holder.  The Application and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by Hush or the owner of the Content.

Choice of Law, Jurisdiction

These Terms are governed by the laws of the State of California, United States of America, without regard to California’s conflict of laws rules.  The User irrevocably consents to the exclusive jurisdiction of the state courts in Los Angeles County, California, United States of America and the federal courts in the United States District Court for the Central District of California, United States of America, for purposes of any legal action arising out of or related to the use of the Application or these Terms.

Severability

If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms.  Failure of Hush to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.

Modification of these Terms

Hush reserves the right to change or modify these Terms or any other Hush terms, conditions, or policies related to use of the Application (including those identified in this agreement) at any time and at its sole discretion by posting revisions within this Application.  Continued use of the Application following the posting of these changes or modifications will constitute the User’s acknowledgement and agreement to such changes or modifications.  Only a specific, written waiver signed by an authorized representative of Hush shall have any legal effect as a waiver by Hush of any Terms of this Agreement.

Third Party Beneficiary

 

User agrees that Hush service providers, licensors, or others involved in creating or providing the Application are third party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.

 

Contact Us

 If you have any questions regarding our privacy practices, you can email us at hello@shophush.com or write to us at: Hush, Inc., 461 2nd Street, Unit 330, San Francisco, CA 94107.