terms of use

-- Terms of Use Updated: November 1, 2023

Welcome to Down Etc! Please read these Terms of Use and our Privacy Policy available here (collectively the “Terms”) carefully, as you agree that you consent to these Terms by your use of this website and Down Etc’s services, including, without limitation, the purchase of Merchandise (as defined below) through the Site, as described further below.

1. Acceptance of Terms of Use.

These Terms govern your access to, and use of, this website located at www.downetc.com and its associated websites, subdomains, mobile versions, any associated applications and services (the “Site”) operated by Down Etc, LLC, a California limited liability company (collectively with its parent, subsidiary, and affiliate companies, “Down Etc”, ”we”, or “our”) and presently hosted by Shopify Inc. (the “Site Host”), as well as the purchase of Merchandise through the Site. By accessing, browsing, or using the Site, including, without limitation, purchasing Merchandise through the Site, you accept these Terms, as well as any referenced policy and any modifications to the Terms that may be made from time to time. If you do not agree to the Terms, you should not access, browse, or otherwise use the Site or purchase Merchandise through the Site. The Terms are a binding legal agreement between you and Down Etc. Please read them carefully.

2. Term and Eligibility.

The Terms remain in full force and effect while you use the Site. All provisions of the Terms shall survive termination by either party, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability. The Site is intended only for access and use by individuals at least eighteen (18) years old. If you are not at least eighteen (18) years old, you are prohibited from both accessing and using of the Site and making purchases on or through the Site. NOTICE: Visit www.OnGuardOnline.gov for tips from the Federal Trade Commission on protecting children’s privacy online. If you are accessing the Site from outside of the United States, you are prohibited from entering any personal information into the Site.

3. Modifications to Terms of Use.

Down Etc reserves the right, at any time, to modify, alter, or update the terms and conditions contained in the Terms, and you agree to be bound by such modifications, alterations, or updates. Please pay careful attention to the “Updated” date set forth above. All changes shall be effective immediately. Your continued use of the Site after the posting of changes constitutes your binding acceptance of such changes.

4. Privacy Policy.

Any information submitted on the Site is subject to our Privacy Policy located here. Please review our Privacy Policy carefully.

5. Merchandise Purchase Policy

Down Etc advertises and offers for sale a variety of products (collectively, “Merchandise”) through the Site. The following terms and conditions (this “Merchandise Purchase Policy”) apply to all purchases of Merchandise from Down Etc, whether made through the Site, over the phone with the assistance of Down Etc customer Site personnel, through catalogs, at retail stores, sample sales, or warehouse sales, or elsewhere, and are expressly incorporated into, and made part of, the Terms.

Merchandise Availability

Merchandise displayed or advertised on the Site may be out of stock, discontinued, or otherwise unavailable. Sometimes you may add Merchandise to your cart but, by the time you check out and your order processes, that Merchandise may no longer be available for purchase; if that happens, we will notify you via email at the email address associated with your account or provided by you at the time of checkout and either (i) cancel the order and issue (or direct the Payment Processor (as defined below) to issue) a refund to your original form of payment (to the extent payment has been processed) for the unavailable Merchandise or (ii) assist you in modifying your order to replace the unavailable Merchandise with suitable alternative Merchandise and then either issue (or direct the Payment Processor to issue) a refund to your original form of payment for the difference in price if the replacement Merchandise is of lesser value or charge your original form of payment the difference in price if the replacement Merchandise is of greater value.

Users outside of the United Sates are not permitted to purchase Merchandise from the Site. Orders for Merchandise from outside of the United States may be placed through Amazon.com.

Merchandise Pricing, Information, and Descriptions

Prices for Merchandise displayed on the Site are quoted in U.S. Dollars and are subject to change at any time. They may also differ from prices quoted by Down Etc customer Site personnel over the phone, displayed in catalogs, or advertised at retail stores, sample sales, warehouse sales, or elsewhere.

We make every effort to display Merchandise and their qualities and attributes, such as their colors, sizes, textures, and appearance, as accurately as possible on the Site. However, you should be aware that the displayed qualities and attributes of the Merchandise depend upon a variety of factors out of our control, including users’ monitor or mobile device screen resolution, physical environment while viewing Merchandise through the Site, and other factors, so we cannot guarantee that the qualities and attributes of Merchandise will always be accurately portrayed on the Site. If you have any questions about any the qualities and attributes of any specific Merchandise, please do not hesitate to contact us and our customer Site team will do their best to assist you.

Down Etc is not responsible for typographical errors, inaccuracies, or omissions on the Site pertaining to Merchandise and its availability, price, or product descriptions, qualities, or attributes. As a result, we do not guarantee the accuracy or completeness of any information on the Site, including prices, product images, specifications, and/or availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted an order for Merchandise). If you do not wish to continue your purchase of any specific Merchandise after its pricing or other information has been corrected, please contact us right away and we will either (i) cancel the order and issue (or direct the Payment Processor to issue) a refund to your original form of payment (to the extent payment has been processed) for such Merchandise or (ii) assist you in modifying your order to replace such Merchandise with suitable alternative Merchandise and then either issue (or direct the Payment Processor to issue) a refund your original form of payment the difference in price if the replacement Merchandise is of lesser value or charge your original form of payment the difference in price if the placement Merchandise is of greater value.

Customer-Provided Merchandise Ratings, Comments, and Feedback

Any user ratings, reviews, comments, or feedback pertaining to Merchandise (collectively, “Product Reviews”) submitted through the Site constitute Submissions (as defined below); they are not provided by Down Etc and, therefore, we cannot and do not warrant or guarantee their accuracy or reliability. Notwithstanding the foregoing, Down Etc reserves the right to moderate Product Reviews in its sole discretion to the fullest extent permitted by these Terms and applicable law.

Payments for Merchandise and Purchase Agreement

To purchase Merchandise made available through the Site, you will be asked to supply Down Etc and/or our third-party payment processor(s) (presently, Shopify Inc., PayPal, Inc., Google Payment Corp., and Venmo, LLC) (the “Payment Processor”) with certain information relevant to your transaction, including, without limitation, your name, your email address where we can send you a receipt and information about your purchase, information about your form of payment (i.e., credit card, payment card, Gift Certificate (as defined below), or other payment method and the expiration date and security/CVV code, if applicable), the billing address associated with such form of payment, the shipping address where we (via a third-party carrier) will send the Merchandise, and other related information (collectively, “Transaction Information”), and we may need to share that Transaction Information with third parties to complete your order as further described in the Privacy Policy. If you decline to provide Down Etc or the Payment Processor with Transaction Information as we deem necessary, or do not wish to permit us to share Transaction Information with our third-party fulfillment Site providers, then we and/or the Payment Processor may refuse or be unable to process the order or, if already processed, we may cancel the order and issue (or direct the Payment Processor to issue) a refund to your original form of payment (to the extent payment has been processed) for the Merchandise.

You represent and warrant that you have the legal right to use any credit cards, payment cards, Gift Certificates, or other payment methods used in connection with any purchases you make through the Site and to provide Down Etc with all related transaction information.

You agree to pay all fees and charges, including, without limitation, all shipping and handling charges, that may be incurred by you or on your behalf through the Site (including through your account), at the prices and amounts in effect when such fees and charges are incurred and you authorize us and the Payment Processor to charge all applicable amounts for the orders that you make to the credit card, payment card, Gift Certificate, or other payment method specified at the time the order is placed. In addition, you remain responsible for any taxes that may be applicable to your transactions.

Gift Certificates

We may, from time to time, sell or issue Down Etc-branded gift certificates, gift cards, merchandise cards, rewards cards, vouchers, store credit cards, or other stored value products, whether in physical or electronic form, redeemable only to purchases of Merchandise (each, a “Gift Certificate”), subject to the following terms and conditions:

• Gift Certificates are issued by Down Etc, which has sole responsibility for the Gift Certificate and its operation and maintenance.

• Gift Certificates are only valid if obtained from Down Etc. Gift Certificate are non-returnable or refundable except where required by law.

• Gift Certificates are redeemable only for purchases of Merchandise, directly from Down Etc., at the time of purchase. Gift Certificates have no cash value and may not be redeemed for cash except as required by law. Gift Certificates are not redeemable to purchase another Gift Certificate or towards previously-purchased Merchandise.

• Gift Certificates may be transferred or given to another person, but may not be sold or resold.
• The balance of a Gift Certificate may be checked by calling Down Etc at 415-348-0084 or at ops@downetc.com. In most cases, the balance of a Gift Certificate is adjusted immediately at the time it’s used to make a purchase, though there may be instances where the balance adjustment is delayed.

• Gift Certificates do not expire.

• Lost, stolen, or damaged Gift Certificates will not be replaced. Down Etc will have no liability for lost or stolen Gift Certificates or the unauthorized use of any Gift Certificate.

Down Etc may set additional or differing terms and conditions for specific Gift Certificate, which will be specified at the time of issuance; in the event of a conflict between these terms and conditions and any Gift Certificate-specific term or condition, the later-issued terms and conditions will apply. Down Etc may modify the foregoing terms and conditions, or any Gift Certificate-specific term or condition, at any time in the manner provided in these Terms or otherwise with notice to the Gift Certificate purchaser.

Promotional or Discounts Codes

We may, at any time and from time to time, for any reason in our sole discretion, create promotional or discount codes that may either discount the purchase price for one or more Merchandise items or be redeemed for credit in your account or for other features or benefits related to the Site (collectively, “Promo Codes”), subject to any additional terms that we establish on a per promotion or per promotional code basis. Promo Codes may only be used, and its associated benefits or discounts may be redeemed, only once per user or account and/or once per transaction. We reserve the right to void Promo Codes for duplicate benefits. Only Promo Codes sent to you through official Down Etc communications are valid and will be honored. You agree that Promo Codes (i) must be used for the intended audience and purpose and in accordance with Applicable Law and these Terms; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by Down Etc at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash, Gift Certificates, or cash equivalents; and (vi) may expire prior to your use and, if that happens, we may decline to reissue a replacement Promo Code.

Shipping, Delivery, and Order Fulfilment

The cost to ship Merchandise that you purchase through the Site is calculated on a “per order,” “per item,” or “per pound” basis and is based on the shipping option you select at the time of purchase. You can find more information about our shipping and delivery options at https://downetc.com/pages/shipping-and-returns under the “Shipping” tab. We will ship the Merchandise through a third-party carrier to the address that you designate when you place the order so long as such address is complete and complies with the shipping restrictions contained on the Site. All purchases of Merchandise are made pursuant to a shipping contract and, as a result, the risk of loss and title for the Merchandise passes to you upon delivery of the Merchandise to the third-party carrier.

Returns and Exchanges of Merchandise

Returns and exchanges of Merchandise purchased through the Site or otherwise directly from Down Etc (and not through a Third-Party Seller, as defined below) are governed by our Return and Exchange Policy (the “Return and Exchange Policy”), which is available on the Site at https://downetc.com/pages/shipping-and-returns under the “Returns” tab and hereby incorporated by reference into this Merchandise Purchase Policy. By purchasing Merchandise through the Site or otherwise directly from Down Etc, you are agreeing to be bound by the Return and Exchange Policy. Please read the Return and Exchange Policy carefully before purchasing any Merchandise.

Notwithstanding anything set forth to the contrary in the Return and Exchange Policy or elsewhere in these Terms, we do not take title to returned Merchandise until the item arrives at our fulfillment center.

Limitations on Merchandise Purchases

Down Etc reserves the right to place limits on or otherwise regulate purchases of Merchandise, which include, without limitation:

• We may limit, cancel, or prohibit any orders for Merchandise, including, without limitation, for pricing errors, violation of this Merchandise Purchase Policy, or for suspected fraudulent activity.

• We may restrict any orders for Merchandise by or under the same account, using the same credit card, and/or using the same billing and/or shipping address.

• We do not authorize the purchase of commercial quantities of Merchandise and reserve the right to, in our sole discretion, prohibit purchases of any Merchandise to resellers, dealers, and distributors (including, without limitation, Third-Party Sellers).

• In the event Down Etc refuses any orders for Merchandise placed through the Site, we will not charge (or direct the Payment Processor not to charge) the form of payment you originally provided. In the event Down Etc limits or cancels, in whole or in part, any orders for Merchandise placed through the Site, we will issue (or direct the Payment Processor to issue) a refund to your original form of payment (to the extent payment has been processed) for the portion of the cancelled order.

• Down Etc reserves the right to terminate the account of any users and/or cease doing business with customers who violate this Merchandise Purchase Policy.

Purchases of Merchandise from Third-Party Sellers

You may choose to purchase Merchandise from authorized persons, companies, and other entities (other than Down Etc) who market, advertise, and/or sell some or all of our Merchandise (each, a “Third-Party Seller”). If you do, you should be aware of the following:

• Third-Party Sellers may have wholesale relationships with Down Etc but operate independently from, and are not endorsed by, Down Etc.

• Purchases of Merchandise from Third-Party Seller are made subject to the terms and conditions of the applicable Third-Party Seller in effect from time to time, not this Merchandise Purchase Policy or these Terms.

• Returns and exchanges of Merchandise purchased from a Third-Party Seller must be handled by the applicable Third-Party Seller subject to their terms and conditions in effect from time to time. Down Etc will not accept any returns of Merchandise or exchange any Merchandise that was purchased from a Third-Party Seller.
• Purchases of Merchandise from Third-Party Sellers are made entirely at the customer’s own risk. Down Etc is not responsible for, and does not guarantee, the quality, suitability, merchantability, or authenticity of any Merchandise offered for sale by a Third-Party Seller. If you are unhappy with the quality, suitability, merchantability, or authenticity of any Merchandise purchased from a Third-Party Seller, you should contact the Third-Party Seller—not Down Etc—to resolve the issue.

• In the event you contact Down Etc with concerns about Merchandise you have purchased, including its quality, suitability, merchantability, or authenticity, Down Etc reserves the right, at any time, to request from you a receipt or other proof of purchase acceptable to Down Etc to verify that Merchandise was purchased directly from Down Etc and not from a Third-Party Seller before Down Etc will assist you in resolving the issue.

• Prices for Merchandise advertised and sold by Third-Party Sellers may differ from prices for Merchandise advertised and sold directly by Down Etc (see “Merchandise Pricing, Information, and Descriptions” above). Down Etc does not price match Third-Party Sellers.

   6. Sweepstakes, Contests, Games, and Promotions

From time to time, sweepstakes, contests, games, or other promotions (collectively, “Promotions”) may be conducted or made available through the Site, and each of those Promotions may have specific rules that are different from these Terms. By participating in a Promotion, you will become subject to those rules. We urge you to review the rules before you participate in a Promotion. Promotion rules will control over any conflict with these Terms, except that, in all instances, the dispute resolution procedures and class action waiver contained herein will control and apply.

7. Accessing the Site and Account Security.

We reserve the right to withdraw or amend the Site, and any service or item we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users.

To access the Site or some of the resources it offers, you may be asked to provide certain registration details or other information, and Transaction Information if you purchase Merchandise through the Site. It is a condition of your use of the Site that all the information you provide on the Site (including, without limitation, Transaction Information) is correct, current, and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account, cancel any outstanding orders for Merchandise, and refuse any and all current and future use of the Site by you.

The Site may allow users to store their Transaction Information, such as one or more forms of payment, billing addresses, and shipping addresses, within their user accounts, for future purchases of Merchandise, which storage shall be subject to the Privacy Policy.

You are solely responsible for maintaining the confidentiality of your account information, as well as any and all activities that occur under your account. You must immediately notify us of any unauthorized use of your account and any other such security breach. We will not be liable for any loss that may occur as a result of someone else using your account or password, with or without your knowledge. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

8. Intellectual Property Rights.

The Site and its entire contents, visual interfaces, interactive features, functionality, audio, video, digital content, information, text, graphics, design, compilation, computer code, products, software, services, proprietary information, copyrights, service marks, trademarks, trade names, distinctive information such as logos, the selection, sequence, “look and feel,” arrangement of items, and all other elements are owned by Down Etc, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and/or other intellectual property or proprietary rights laws.

These Terms permit you to use the Site for your personal, non-commercial use only, subject to the following restrictions:

• You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Site, except as it is created and owned by you.
• You must not delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Site.
• You must not access or use for any commercial purposes any part of the Site or any services or materials available through the Site, except with the express written permission of Down Etc.
• No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by Down Etc.
• You agree not to utilize framing techniques to enclose any trademark, logo, or other Down Etc. Materials without our express prior written consent. You agree not to use any meta tags or any other "hidden text" utilizing Down Etc's name or trademarks without Down Etc's express prior written consent.
• You agree not to use any Down Etc logos, graphics, or trademarks as part of the link without our express prior written consent.

The Down Etc name and logo, and all related names, logos, product and service names, designs, and slogans are the property of Down Etc or its affiliates or licensors. You must not copy, imitate, or use such marks, in whole or in part, without the prior written permission of Down Etc. All other names, logos, product and service names, designs, and slogans on the Site are the trademarks of their respective owners. Any reference to products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise is not an indication or endorsement by Down Etc unless otherwise indicated.

9. Reporting Claims of Copyright Infringement.

We take claims of copyright infringement seriously. If you believe that any copyrighted material owned by you has been infringed upon by someone using the Site, you may request removal of those materials from the Site by submitting written notification to our Copyright Agent at ops@downetc.com. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Site and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Site;
4. Information reasonably sufficient to permit Down Etc to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has 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
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you fail to comply with all of these requirements, your DMCA Notice may not be effective. Additionally, if you knowingly misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages under Section 512(f) of the DMCA.

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

• Notice and Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described above, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below. We may, at our discretion, deny access to the Site by, or disable and/or terminate the accounts of, Users who may be infringers.

• Copyright Counter-Notices. If content you posted on the Site was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:

1. To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
2. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.

• Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):

1. Identify the specific URLs of (or other information sufficient to allow us to identify) material that Down Etc has removed or to which Down Etc has disabled access.
2. Provide your full name, address, telephone number, email address and, if you are a registered User, the username of your Down Etc account.
3. Provide a statement that you consent to the jurisdiction of the state court located in the County of San Mateo, California, or federal court in the Northern District of California, San Jose Branch, and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above or an agent of such person.
4. Include the following statement: “I swear, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following email address: ops@downetc.com.

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant. After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Site. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).

• Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Site is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of California. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.” 

DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.

10. Submissions

The Site may allow you to send materials to us, including for use on the Site. You agree that Down Etc is free to use any comments, suggestions, questions, ideas, plans, notes, drawings, original or creative materials or other information, provided by you in the form of e-mail or other submissions to us, or postings to or on the Site, but not including your account or order information, (each, a “Submission”) without compensation, acknowledgement, or payment to you for any purpose whatsoever. Furthermore, you agree that Submissions are non-confidential, and grant us a non-exclusive, fully paid, royalty-free, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display Submissions throughout the world in any media now known or hereafter developed, with or without acknowledgment to you, in our sole discretion and without compensation to you. You agree that you shall have no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submission and that the submission of any such materials to us, irrevocably waives any and all “moral rights” in your Submissions, including the rights of paternity and integrity. By posting or providing a Submission or other information, you represent and warrant that public posting and use of your Submission or information by Down Etc will not infringe on or violate the rights of any third party, and that you will indemnify us against any liability or losses arising out of our use of your Submissions in accordance with these Terms. Please do not submit Submissions to us if you do not understand and agree with these provisions.

11. Service Availability; Timeliness of Information

From time to time, we test various aspects of the Site, including the platform, user interfaces, service levels, plans, promotions, features, content and pricing, and we reserve the right to include you in or exclude you from these tests without notice. Down Etc may make changes to or discontinue any of the Down Etc Materials, web communities or products available on the Site at any time, and without notice, and Down Etc makes no commitment to update these materials on the Site.

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 the 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.

    12. Links

We may provide links to other websites or resources that are beyond our control. We make no representations as to the quality, content, nature, or reliability of websites, which links to may be provided, and you hereby waive any claim you might have against us with respect to such sites. Down Etc is not responsible for the content on the internet or web pages that are contained outside the Site; when leaving this Site you should be aware that our terms and policies no longer govern, and therefore, you should review the terms of use of that website.

13. Prohibited Uses.

As a condition of your use of the Site, you hereby represent and warrant that you will not use the Site for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Terms. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Site, or use or access the Site or content obtained through the Site, for any purpose other than for your personal use, as any use by you of any of the Site other than for your personal use is strictly prohibited. You further agree not to:

• Create derivative works of the Site content, including, without limitation, montages, mashups and similar videos, wallpaper, desktop themes, greeting cards or merchandise, unless permitted under these Terms or with the prior written authorization of Down Etc and any applicable licensors.
• Use the Site if you do not meet the eligibility requirements described in Section 2 above.
• Defame, harass, abuse, threaten, stalk or defraud users of the Site, or collect, or attempt to collect, personal information about users or third parties without their consent.
• Intentionally interfere with or damage, impair or disable the operation of the Site or any user's enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Site with the intended result of denying service to other users.
• Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of any part of the Site, or features that enforce limitations on the use of the Site.
• Attempt to gain unauthorized access to the Site or any part of it, including gaining access or attempting to gain access to another user's account, computer systems or networks connected to the Site or any part of it, through request, hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted through the Site.
• Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site.
• Modify the Site in any manner or form (other than in accordance with these Terms), or use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site or for the removal of any proprietary notices or labels on the Site.
• Use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
• Use or attempt to use, or allow, or enable, or knowingly condone any other person, company, or other entity to use or attempt to use, the Site to access, copy, reproduce, use, or create derivative works of content or textual information pertaining thereto or images or photos thereof, trademarks, Submissions or other user-generated content, or any other content, materials, information, text, copyrightable materials or other original works of authorship, images, pictures, photos, designs, artwork, graphics, stills, musical compositions, sound recordings, audio content or files, videos or video files, audiovisual content or files, software, firmware, code, tools, databases, textual links, keywords, data or metadata, chats, or other intellectual property of any kind or nature uploaded to, or contained in, the Site or the Merchandise or other products or services advertised and/or made available for purchase on or through the Site in connection with, or for purposes of training, any machine learning or artificial intelligence (AI) or similar technologies now known or hereafter devised, including, without limitation, technologies that are capable of generating works in the same style or genre as any of the foregoing (i.e., “generative AI”), for any reason, whether for personal use, commercial use, or otherwise.
• Sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any right to the Site to any third party.
• Make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Site or to insert your own or a third party's advertising, branding or other promotional content on the Site, including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
• Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
• Use the Site in any manner that could interrupt, damage, disable, overburden or impair the Site, or interfere with any other party's use and enjoyment of the Site, including, without limitation, sending mass unsolicited messages or "flooding" servers.
• Modify, adapt, translate, or create derivative works based upon the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
• Impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
• Use the Site to "stalk" or otherwise harass or harm another in any way.
• Post, transmit or otherwise disseminate through the Site any content that, as we determine in our sole discretion: (i) is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party's intellectual property or other rights, (ii) is derogatory or harmful to our reputation or our Merchandise’s reputation, the reputation of our licensors, or any of our or their respective officers, members, employees, representatives, licensors and/or suppliers, in any way, or otherwise constitutes false, misleading, or spam Product Reviews; (iii) may incite violence or other unlawful activity; or (iv) is harmful to children in any manner.
• Take any action that may damage or falsify Down Etc or the Site rating.

14. Social Media Component.

In certain sections of the Site, you may also be able to post your comments and/or Product Reviews on social media sites or platforms, such as Facebook, Pinterest, Instagram, YouTube, TikTok, Twitter, or Threads.  For example, your friends and others who have access to view information about you on these social media sites will be able to see that you posted a comment. You’ll also be able to see similar information about your social media site friends who are connected to our Site. In addition, our Site may personalize and otherwise enhance your experience based on your social media accounts, such as your basic information, likes and interests.  Please pay careful attention to the privacy settings on your third-party social media accounts, which will impact this feature and may give you some control over the information that is shared and who it is shared with to the extent permitted by such social media sites’ functionalities and privacy settings.

BY CONNECTING YOUR SITE ACCOUNT TO YOUR THIRD-PARTY SOCIAL MEDIA ACCOUNTS, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT YOU TO OTHERS, INCLUDING TO SOCIAL MEDIA SITES, SUCH AS FACEBOOK, PINTEREST, INSTAGRAM, YOUTUBE, TWITTER, THREADS, OR TIKTOK, (IN ACCORDANCE WITH YOUR PRIVACY SETTINGS ON SUCH SERVICES AND YOUR ACCOUNT SETTINGS ON OUR SITE).  IF YOU DO NOT WANT INFORMATION ABOUT YOU TO BE SHARED IN THIS MANNER, DO NOT USE THE SOCIAL MEDIA SITE FEATURES.

15. Termination

You may terminate your use of the Site at any time by notifying us that you no longer wish to use our services, or when you cease using our Site. You agree that Down Etc, in its sole discretion, may terminate any account (or any part thereof) you may have through the Site, any orders of Merchandise purchased but not yet fulfilled, or your use of the Site, and remove and discard all or any part of your account or any Submissions or other user content. You agree that your access to the Site or any account you may have or portion thereof may be terminated without prior notice, and you will remain liable for all amounts due up to and including the date of termination (including, without limitation, all payments for purchases made in accordance with our Merchandise Purchase Policy); and/or accordingly may deny you access to the Site (or any part thereof). You also agree that Down Etc shall not be liable to you or any third-party for any such termination. Down Etc reserves the right to modify, suspend or discontinue the Site and/or access to it at any time and without notice to you, and Down Etc will not be liable to you should it exercise such rights, even if your use of the Site is impacted by the change. These remedies are in addition to any other remedies Down Etc may have at law or in equity. All provisions of the Terms shall survive termination of use of the Site, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

16. No Warranties; Other Disclaimers.

                   

THIS SITE AND THE MATERIALS CONTAINED THEREIN, AS WELL AS MATERIALS AND INFORMATION PROVIDED VIA TEXT MESSAGE (AS DEFINED BELOW), ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; DOWN ETC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT USE OF THIS SITE, INCLUDING ALL CONTENT OR DATA DISTRIBUTED BY, DOWNLOADED, OR ACCESSED FROM OR THROUGH THIS SITE OR VIA TEXT MESSAGE, IS AT YOUR SOLE RISK. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, RELIABILITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. NEITHER DOWN ETC NOR ANY OTHER DOWN PARTY (AS DEFINED BELOW) MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE OR TEXT MESSAGES. WITHOUT LIMITING THE FOREGOING, NEITHER DOWN ETC NOR ANY DOWN PARTY REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR VIA TEXT MESSAGE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE, TEXT MESSAGES, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE (INCLUDING, WITHOUT LIMITATION, MERCHANDISE) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

WHILE WE ATTEMPT TO ENSURE YOUR ACCESS AND USE OF THE SITE IS SAFE, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE CONTENT PROVIDED ON THE SITE OR VIA TEXT MESSAGE.

By using the Site and accessing the information and content contained therein, you acknowledge and agree that such information and content, as well as any opinions and recommendations presented therein, are for general information and educational purposes only. Down Etc disclaims any responsibility for the accuracy, completeness, availability, or reliability of any of the information and contained on the Site, nor do we endorse any of the facts, opinions, and recommendations contained therein. You should not rely on any of the foregoing as a substitute for, nor does it replace, professional medical or health and wellness advice, diagnosis, or treatment by a healthcare professional. If you have specific concerns or a situation in which you require professional or medical advice, you should consult with an appropriately trained and qualified specialist, such as a licensed physician, psychologist, or other health professional. Never disregard the medical advice of a physician, psychologist, or other health professional, or delay in seeking such advice, because of the information or content offered or provided on the Site. The use of the Site and all information and content contained thereon is solely at your own risk.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

YOU ACKNOWLEDGE AND AGREE THAT DOWN ETC HAS OFFERED ITS SITE AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DOWN ETC, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND DOWN ETC. YOU ACKNOWLEDGE AND AGREE THAT DOWN ETC WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

17. Limited Liability.

IN NO EVENT WILL THE DOWN PARTIES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, TEXT MESSAGES, ANY WEBSITES LINKED TO THE SITE, ANY CONTENT ON THE SITE OR IN TEXT MESSAGES, OR SUCH OTHER WEBSITES OR ANY MERCHANDISE PURCHASED OR SERVICES OR ITEMS OBTAINED THROUGH THE SITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE DOWN ETC PARTIES TO ANY OTHER PARTY, INCLUDING YOU, (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE PAID TO DOWN ETC FOR THE APPLICABLE MERCHANDISE YOU HAVE PURCHASED AND OUT OF WHICH SUCH LIABILITY AROSE.

 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

18. Force Majeure.

Except for payment obligations, non-performance or late performance of either party shall be excused to the extent that performance is rendered impossible, commercially unreasonable, or delayed by strike, fire, flood, pandemic, governmental acts or orders or restrictions, war, acts of terrorism, labor conditions, supply restrictions, communication or shipment problems, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing or late performing party whether or not similar to the foregoing.

    19. Indemnification

You agree to defend, indemnify, and hold harmless Down Etc and its parent, subsidiary, and affiliate companies and its and their respective officers, directors, employees, contractors, operational service providers (including, without limitation, the Site Host, the Payment Processors, third-party carriers, and Merchandise manufacturers and distributors), agents, licensors, licensees, suppliers, successors, and assigns (collectively, the “Down Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to (i) your violation, or allegation which if true would constitute a breach or violation, of the Terms (including, without limitation, any representation, warranty, or obligation contained therein), (ii) your use or misuse of the Site, including, but not limited to, any use of the Site’s content, services, and products other than as expressly authorized in the Terms or your use of any information obtained from the Site, (iii) any violations, or allegation which if true would constitute a violation, of applicable law; (iv) infringement, misappropriation, or violation, or allegation which if true would constitute an infringement, misappropriation, or violation, of applicable  or the rights of others in connection with your Submissions or other user-generated content; (v) your Submissions or other user-generated content, including our use, display, or other exercise of our license rights granted herein with respect thereto; or (vi) any unauthorized use, or allegation which if true would constitute an unauthorized use, of your account.

Down Etc reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter giving rise to your indemnification obligations without the prior written consent of Down Etc. Down Etc will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

20. Communications from Down Etc

By registering or creating an account or purchasing Merchandise through the Site, you may be automatically subscribed to receive certain email notifications from us (collectively, “Automatic Communications”), or we may give you the option to select and receive certain email notifications from us (collectively, “Voluntary Communications”). You will always have the option to unsubscribe from Voluntary Communications and promotional Automatic Communications.

You may choose to receive Automatic Communications and Voluntary Communications from Down Etc via SMS/text message (collectively, “Text Messages”), which may include both service-related messages, updates, alerts, and information (e.g., order updates, account alerts, etc.) and promotional messages, specials, promotions, and other marketing offers (e.g., cart reminders). By signing up for, or otherwise consenting to receive, Text Messages, you agree to provide us with a valid mobile phone number and to receive recurring Text Messages from and on behalf of Down Etc through your wireless provider to the mobile telephone number you provided, even if your mobile telephone number is registered on any state or federal Do Not Call list. Text Messages may be sent using an automatic telephone dialing system or other technology. We may send Text Messages ourselves and/or utilize the services of a third party to send Text Messages on our behalf.  You do not have to sign up for Text Messages in order to make any purchases of Merchandise or otherwise use the Site, and your consent is not a condition of any purchase with Down Etc. Down Etc does not charge you to receive Text Messages, but you are responsible for all charges and fees associated with Text Messages imposed by your wireless provider. Text Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to Text Messages, including charges from your wireless provider. You may opt-out of receiving Text Messages at any time by texting the single keyword command STOP to +1 (877) 203-2270 or clicking the unsubscribe link (where available) in any Text Message to cancel. You’ll receive a one-time opt-out confirmation Text Message. No further Text Messages will be sent to your mobile device, unless initiated by you. For support or assistance, text HELP to +1 (877) 203-2270 or email ops@downetc.com.

Voluntary Communications may include, from time to time, surveys and questionnaires of our Merchandise customers and/or Site users to solicit Product Feedback or other information, comments, or suggestions regarding Down Etc and our Site, Merchandise or other products or services, or customers and their preferences, habits, or other insights (collectively, “Surveys”). We may conduct Surveys ourselves and/or utilize the services of a third party to conduct Surveys on our behalf. Recipients of Survey requests are under no obligation whatsoever to respond to, or complete, the Survey, though we may, in our discretion, incentivize recipients to complete and submit Surveys with Promo Codes and other rewards or benefits. As between Down Etc and each Survey respondent, Down Etc will own all Survey content and submissions and other results and proceeds of each Survey, including, without limitation, any and all consumer insights and comments or suggestions regarding the possible creation, modification, correction, improvement, or enhancement of our Merchandise or other products or services, regardless of whether or not a Survey respondent is offered, accepts, and/or utilizes any Promo Code or other perk or benefit that may be offered as an inducement to complete and submit the Survey.

21. Applicable Law and Venue.

These Terms and any transactions hereunder shall be governed by and construed in accordance with the laws of the State of California without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these terms and conditions shall be filed only in state court located in the County of San Mateo, California, or federal court in the Northern District of California, San Jose Branch, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these terms and conditions.

    22. Arbitration

For any dispute you have with us, you agree to first contact us through email ops@downetc.com and attempt to resolve the dispute with us informally. If we have not been able to resolve the dispute with you informally, we each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in California before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

    23. Claims

YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. 

24. Notice for California Users.

Under California Civil Code Section 1789.3, users of an electronic commercial service from California are entitled to receive information on how to resolve a complaint regarding our Site or to receive further information regarding use of our Site. Users may submit these types of complaints or requests to Down Etc via email at ops@downetc.com or may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or (800) 952-5210.

25. General Terms.

• If any provision of the Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions.

• The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Down Etc without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

• This is the entire agreement between you and Down Etc relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any other agreements that you may have entered into with Down Etc. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by Down Etc as set forth in Section 3 above. All rights not expressly granted in these Terms are reserved to us.

 Copyright © 2023 Down Etc, LLC. All Rights Reserved.