Terms & ConditionsCad & The Dandy
CAD & THE DANDY USA INC.
TERMS & CONDITIONS OF SALE (online)
1. WHO WE ARE
This (“Website”) https://www.cadandthedandy.com and all content, features, functionality, and offers made available through the Website (the “Online Services”) are operated by CAD & THE DANDY USA INC. (“we”, “us”, “our”). We are a corporation with an office at 130 W 57th Street, Suite 5A, Fifth Floor, New York, NY 10019, USA.
2. CONTACT US
If you have any questions about us, these Terms and Conditions of Sale, our Website or our products, please do not hesitate to contact us at: firstname.lastname@example.org.
3. APPLICATION OF THESE TERMS & CONDITIONS
These Terms and Conditions of Sale together with our Privacy Notice and Cookies Policy, both located at https://www.cadandthedandy.com/privacy-and-security-policies/, will apply to all orders you place and any purchases you make on this Website for any of our non-bespoke products (including our Ready to Wear range), regardless of how you have accessed our Website.
Please read these Terms and Conditions of Sale carefully before placing your order (you may wish to print a copy for your record). These terms tell you who we are, how we will provide products to you, how you and we may change or end the contract between us, what to do if there is a problem and other important information. By using and/or placing an order through this Website, you confirm that you have read, understood and agree to these terms and conditions.
If you think there is a mistake in these Terms and Conditions of Sale or there are any terms that you do not understand, then please contact us to discuss.
We may occasionally amend these terms and conditions and you should check them each time you place an order. These terms and conditions were last modified on August 9, 2021.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
Our Website, services, and all our software, systems, technology, and know-how (collectively, “Technology”) are owned or licensed by us and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights and proprietary rights. We are an authorized distributor of our products. All trademarks, trade names, graphics, logos, and trade dress included in or made available through our Website and Online Services are owned by or licensed to us and protected by US and international trademark laws (collectively, the “Marks”). You agree that we and our licensors own and retain all right, title and interest (including all intellectual property and trade secret rights) in and to our Website, Online Services, Marks, and Technology (collectively, the “Intellectual Property”), and that no interest therein is transferred to you.
We hereby grant you a non-exclusive, non-transferable, revocable, limited right and license to access and use the Online Services solely for your personal, non-commercial use in accordance with these Terms & Conditions of Sale.
Except as otherwise provided in these Terms & Conditions of Sale, nothing herein shall confer any grant or license of any of our Intellectual Property rights, whether by estoppel, by implication, or otherwise and you are strictly prohibited from using any Intellectual Property.
5. RESTRICTIONS ON USE
You shall not:
– reproduce, distribute, or publically display the Website or Online Services;
– adapt, alter, modify, reverse engineer, disassemble, or decompile the Website, Online Services, or any Technology or Intellectual Property;
– prepare derivative works based on the Website, Online Services, any Technology or Intellectual Property;
– remove, obscure, or modify any copyright, trademark or other proprietary rights notices, Marks or labels contained on or within the Website, Online Services, products, any Technology or Intellectual Property;
– frame, mirror, or in-line link the Website or Online Services, or incorporate into another website, application, or other service any Intellectual Property;
– use the Website, Online Services, the Technology or Intellectual Property for any unlawful, fraudulent, or malicious purposes, or to solicit any such activity;
– attempt to gain unauthorized access to any accounts, features, systems, or networks through hacking, password mining, or any other means;
– interfere with any access control measures or attempt to disable or circumvent such security features;
– post, transmit, submit, or include any viruses, code, or programming routines intended to damage the Website or Online Services;
– post, transmit, submit, or include any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable content, material, or information of any kind;
– submit or post any false or misleading information; and/or
– violate, infringe, or misappropriate publicity, privacy, or other proprietary rights of us, our licensors, or any other person or entity related to the Website, Online Services, or products.
We reserve the right to prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to this Website, the Online Services, users, us, our brand, our business partners and licensors, or any other person or entity, or that violates these Terms and Conditions of Sale and/or applicable law.
6. OUR PRODUCTS
The images of the products on our Website are illustrative only. Although we have made every effort to display the products and colors accurately, we cannot guarantee a device’s display of the colors accurately reflects the true color of the products and your products may vary slightly from those images.
While every care has been taken to ensure that product information on our Website is correct, actual product, packaging and materials may contain more and/or different information than shown on our Website.
All product measurements for our non-bespoke products (including our Ready to Wear range) are approximate only.
The packaging of the products may vary from that shown in images on our Website.
You should always read the labels, warnings and instructions provided on or with the products before using them and not rely solely on the information on our Website. This does not affect your legal rights.
If you have any queries about the products you have purchased, then please contact us using the contact information provided in section 2 above.
7. HOW TO BUY
To place an order for any of our non-bespoke products on this Website, you should:
– Step 1: Add your product to the “Cart” by clicking on “Add to Cart”.
– Step 2: enter the Cart and click on the “Checkout” button.
Log in to your online account
– Step 3:
Existing customers: If not already logged in, log in to your online account through the link in the “Checkout” page or go to the “Login / Register” link at the top of the Website.
New customers: Provide your valid email address, billing and delivery address information and choose a password. You can then choose to set up an account and choose a password or continue to check out as a guest. Your personal information will be held in the strictest confidence and used in accordance with our Privacy Notice, a copy of which can be viewed here https://www.cadandthedandy.com/privacy-and-security-policies/.
– Step 4: Select your delivery option.
– Step 5: Review your order and click to confirm acceptance of these Terms and Conditions of Sale before continuing to payment.
– Step 6: Place your order and make payment.
While processing your online order you can access your Cart at any time and up until the point at which you place your order, you can review it and make changes to it. Please take the time to check your order before submitting it. If you submit an order in error, you will have the opportunity to cancel it in accordance with section 9 below.
You can pay for products using a debit or credit card (MasterCard or Visa only) or PayPal. We will take full payment for your order immediately when your order is placed. All transactions are charged in US Dollars at checkout.
During the checkout process, you will be asked for your payment details. By completing these, you are confirming that the debit or credit card is yours. All card payments are subject to authorization by your card issuer.
If you wish to pay for the products using PayPal, then once you have confirmed your order, you will be redirected to the PayPal login page to complete the payment of the order. If you do not have a PayPal account, you can sign up at the PayPal login page before completing your order.
If you place your order on a Saturday, Sunday or holiday, the order will be processed and confirmed usually by the following business day in the US.
Once you have placed an order, you will receive an e-mail from us acknowledging receipt of your order. However, this does not mean your order is accepted by us. Your order will only be accepted by us once payment for the products is taken. It is at this point that the contract between you and us for the sale and purchase of the products you have ordered is formed and becomes binding. The contract that is formed will be in English and will include these Terms and Conditions of Sale.
We may also be unable to accept your order because, among other reasons or no reason:
– we have identified an error in the price or description of the product;
– we are unable to obtain authorization for your payment;
– you do not meet the eligibility to order criteria as set out in these Terms and Conditions of Sale; or
– we are unable to meet a delivery deadline you have specified.
We will let you know if this is the case and will not charge you for the products you have attempted to order in these circumstances. If you have already paid for any of our non-bespoke products, we will promptly refund you the full amount.
We may also decide, at our discretion, not to accept an order from you for any of our products.
The prices of the products will be as shown on our Website and in US Dollars, including sales tax, as required by applicable state law, or any other local import duties. Our prices may occasionally change, but (except for any change in the sales tax (see below)) this will not affect any order you have placed before that price change and which we have already accepted.
If the rate of sales tax changes between your order date and the date we supply the product, we will adjust the rate of sales tax that you pay, unless you have already paid for the product in full and before the change in the rate of VAT takes effect.
Our prices exclude delivery charges. In the checkout you will be able to add your delivery details and the website will display the delivery costs before you process your order.
We make every effort to ensure that the correct prices are displayed on our Website and notified to you during your consultations with us. However, if we discover an error in the price of the products you have ordered before they are delivered to you, we will contact you to inform you of this error and we will give you the option of continuing to purchase the product at the correct price or cancelling your order. If we are unable to contact you, we will treat the order as cancelled and notify you accordingly.
Please note that if a pricing error is obvious and unmistakable and could have reasonably been recognized by you as a mispricing, we do not have to provide the products to you at the incorrect (lower) price.
9. DISCOUNT AND PROMOTION CODES
Occasionally, we may offer special promotions (such as discounts or offers) on certain products. We have the right to withdraw such promotions at any time and they may also be subject to time restrictions, availability and other terms and conditions.
To avoid disappointment, please ensure you check the terms and conditions for a promotional offer before trying to redeem it.
We may occasionally offer promotional discounts, with or without a promotion code. Promotions with codes are usually only valid for one transaction and once the code is used, it will be deactivated and will no longer be valid.
Promotions cannot be added to an order after the order is confirmed, therefore you must ensure that the voucher is registered before you confirm and pay for the products.
We are not responsible for promotions related to our products where such promotions are published on external websites or other media.
We can withdraw a promotion or promotional code at any time.
Products you order from us will be delivered to the delivery address notified by you at the time of placing your order. We have no liability whatsoever for any products delivered to an address which has not been correctly provided to us. You must promptly notify us of any change to your delivery address or contact phone numbers.
We cannot guarantee any specific delivery timeframes. We will use commercially reasonable efforts to send you your non-bespoke products by the estimated delivery date set out in our email confirming your order, or, if no date is specified, then no later than 30 days following the date of our email confirming your order.
If no one is available at your address to take delivery and it is not possible to leave the products securely at that address, you will be left a note informing you that delivery has been attempted and that products have been returned to our courier’s premises, in which case, please contact us or our courier to rearrange delivery.
If after a failed delivery, you do not re-arrange delivery or collect the products from the delivery depot notified to you, we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection, we may end the contract and we will refund you the money you have already paid for the order but reserve the right to deduct from the refund a reasonable sum as compensation for any costs we have incurred as a result.
We do not deliver to PO Boxes.
You may place an order for products from outside the US, but you are responsible for the payment of all local import duties and tariffs.
If we consider that we are or may be unable to supply the products to you within a reasonable time (or at all), we can cancel the contract with you, without liability, except that we will refund you any sums that have already been paid to us for the cancelled contract.
Products that you order from us will be your responsibility from the time we deliver these products to the address you gave us when placing your order.
11. YOUR RIGHT TO CHANGE YOUR MIND
For any non-bespoke products you order from us, you have 15 days from the date the products are delivered to change your mind, cancel your order and receive a refund (see section 11 below).
You also have the right to terminate the contract by e-mailing us at our contact details set out above in section 2 where:
– we have told you about an error in the price or description of the products you have ordered and you do not wish to proceed;
– there is a risk that delivery of the products may be significantly delayed for a period of more than 30 days beyond the estimated delivery date associated with the delivery option you chose when placing your order through no fault of yours; or
– we have done something wrong or failed to do something in breach of the contract between you and us.
The contract will end as soon as we receive your notification and we will refund you in full for the price of any products (plus postage costs) you have paid for and which have not yet been provided.
To exercise your right to cancel your order of any non-bespoke products, you must inform us of your decision to cancel within the cancellation period stated above by sending a notice to us in writing to this effect to our contact details set out at Section 2 above or calling us at +1 917 400 4804. You may instead prefer to cancel your order by completing and returning to us our cancellation form, a copy of which can be viewed and downloaded at the bottom of this page. We suggest you keep a copy of your cancellation notification for your own records. You must arrange and pay for the return of the order to us at Cad & The Dandy Limited, 130 West 57th Street, Suite 5A, 5th Floor, New York, NY 10019 USA, and you are responsible for ensuring it reaches us in a saleable condition.
Your cancellation is effective from the date you notify us that you wish to cancel. You must return the cancelled products to us within 14 days of informing us that you wish to cancel or, if you have yet to receive the products, within 14 days from the date that you receive them.
If you are returning your products by post, we recommend that products are sent by registered post or you obtain a certificate of posting from your local post office or by courier. You should always retain evidence of posting or proof of shipment and the tracking number until the purchase price has been refunded.
Please note if we supplied promotional items free of charge with the order that you wish to cancel and return, then all promotional items must be returned together with the cancelled order items in order to qualify for a full refund. For more information on refunds including our right to make deductions in certain circumstances, please see section 13 below.
12. DAMAGED OR FAULTY PRODUCTS
If what you have bought is faulty, broken (on arrival) or incorrectly described (minor variations do not count, see section 6 above), please contact us as soon as possible using the details set out in section 2 above.
We will inspect the products and if we determine that they are faulty, broken (on arrival) or incorrectly described, we will (at your choice) either replace or repair any faulty non-bespoke products free of charge or refund you the price of the faulty products and the delivery charges you paid for the products.
If you have a right to cancel or to terminate the contract with us, then products must be returned unused, undamaged and in their original undamaged packaging to qualify for a refund.
If you are returning or cancelling your order in accordance with these Terms and Conditions of Sale, you will receive a full refund of the price you paid for the products including delivery costs except as follows:
– we are only obliged to refund delivery costs for the least expensive delivery method we offer. Therefore if you chose a more expensive form of delivery when ordering (e.g. special delivery within 2 working days), we will not pay the difference between this method of delivery and our least expensive method of delivery; and
– we may reduce your refund of the price (excluding delivery costs) to reflect any reduction in the value of the products if this has been caused by your handling of the products which would not be permitted in a shop. You must take reasonable care of the products while they are in your possession and are responsible for the risk of damage during transport. If we refund you the price paid before we are able to inspect the products and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount.
We will process any refund due to you as soon as possible and, in any case, no later than 14 days after the day we receive the returned products from you, or (if earlier) the day you provide us with reasonably acceptable evidence that you have returned the products.
All refunds to you will be made by the payment method you used when paying for the order being refunded.
14. OUR RIGHT TO END THE CONTRACT
We may end the contract if you breach it. For example, where you do not pay us any sum when due and still do not make payment within 14 days of us reminding you that payment is due, or you seek to order products which you are not eligible to order (for example where the sale is confined to our employees only and you are not an employee).
You must compensate us if you breach the contract. If we end the contract in the situations set out in above, we will refund any money you have paid in advance for products we have not provided but, we may deduct from that refund or charge you, reasonable compensation for the net costs we will incur as a result of your breaching the contract.
We may withdraw any of our products at any time and without notice. If you have purchased a product that we have withdrawn, we will refund any sums you have paid in advance for products which will not be provided.
15. DISCLAIMER OF WARRANTIES
THE WEBSITE, PRODUCTS, AND ONLINE SERVICES ARE PROVIDED “AS IS”. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL IMPLIED WARRANTIES WITH RESPECT TO THE WEBSITE, ONLINE SERVICES, AND PRODUCTS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE SHALL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO, USE OF, OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. WE MAY DISCONTINUE ANY ASPECT OF THE WEBSITE, DISCONTINUE ANY PRODUCT OFFERINGS, OR THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF THE WEBSITE AT ANY TIME. WITHOUT LIMITING THE FOREGOING, WE DO NOT GUARANTEE THAT THE ONLINE SERVICES WILL MEET YOUR REQUIREMENTS, OR WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
16. OUR LIABILITY
IN NO EVENT SHALL WE, OUR BUSINESS PARTNERS, LICENSORS, OR OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR PROVIDERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, THE WEBSITE OR ONLINE SERVICES OR THESE TERMS AND CONDITIONS OF SALE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, LIABILITIES, COSTS OR EXPENSE (INCLUDING ATTORNEYS FEES AND COSTS) ARISING FROM THE PRODUCTS, WEBSITE OR ONLINE SERVICES AND/OR THESE TERMS AND CONDITIONS OF SALE, EXCEED THE LESSER OF USD $1,000 OR THE AMOUNT PAID BY YOU FOR THE PRODUCTS AT ISSUE IN CONNECTION WITH SUCH CLAIM.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET FORTH IN THESE TERMS AND CONDITIONS OF SALE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
We are only supplying the products to you for domestic and private use. You agree not to use the products for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
You agree to defend, indemnify, and hold harmless us and our licensors from and against any and all claims, causes of action, damages, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees and costs) arising from your breach of these Terms and Conditions of Sale.
18. EVENTS OUTSIDE OUR CONTROL
We will not be liable or responsible for any failure to perform or delay in performance of any of our obligations under these Terms and Conditions of Sale that is caused by an event outside our control (including (but not limited to) strikes, fire, storm, flood or other natural disaster, epidemics, pandemics, failures in our supply chain, or failure of telecommunications networks or impossibility of the use of transport).
If we are unable to perform our obligations to you as a result of any event outside of our control, we will contact you as soon as reasonably possible and we will take steps to minimize the effect of any delay. Provided we do this, our obligations to you shall be suspended for the duration of the event outside of our control and we will not be liable for any delay caused by the event. If this affects our delivery of products to you, we will arrange a new delivery date with you as soon as we are able to confirm this, but if there is a risk of substantial delay, you have the option to cancel the affected order and receive a refund for any products you have paid for but not yet received.
19. HOW WE USE YOUR PERSONAL INFORMATION
We will only use your personal information in accordance with our Privacy Notice, a copy of which can be viewed at https://www.cadandthedandy.com/privacy-and-security-policies/. Please take the time to read this.
20. OTHER IMPORTANT TERMS
This contract is between you and us. No other person shall have any rights to enforce any of its terms.
We may transfer our rights and obligations under any contract with you to another organization. We will tell you if this happens. You must not transfer any of your rights and obligations under any contract unless we agree in writing.
Each provision of these Terms and Conditions of Sale are separate and if any court or relevant authority decides that any of them are unlawful or unenforceable, the other provisions will remain in full force and effect.
If we do not insist that you perform any of your obligations, or where we do not enforce or delay enforcing our rights, that will not mean that we have waived our rights nor that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
You agree that, except to the extent inconsistent with the Federal Arbitration Act (“FAA”) or preempted by federal law, these Terms and Conditions of Sale are governed by laws of the State of New York and, subject to the Arbitration Agreement set forth below, New York courts shall have non-exclusive jurisdiction to hear any dispute or claim arising out of or in connection with these Terms and Conditions of Sale. YOU AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO SEEK REMEDIES BEYOND THE EXTENT NECESSARY TO PROVIDE INDIVIDUALIZED RELIEF TO, AND AFFECTING, YOU. YOU AGREE NOT TO ACT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED OR DE FACTO CLASS OR REPRESENTATIVE PROCEEDING, OR AS A PRIVATE ATTORNEY GENERAL, OR ON BEHALF OF THE GENERAL PUBLIC. YOU AGREE THAT YOU ARE WAIVING THE RIGHT TO SEEK REMEDIES BEYOND THE EXTENT NECESSARY TO PROVIDE INDIVIDUALIZED RELIEF TO, AND AFFECTING, YOU. PURSUANT TO THE ARBITRATION AGREEMENT (DEFINED BELOW) THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS ACTION OR PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER WEBSITE USERS. IF A COURT DECIDES THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF ANY OF THIS PARAGRAPH’S PROHIBITIONS ON CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTIONS OR PROCEEDINGS AS TO ANY CLAIM, THEN THAT CLAIM (AND ONLY THAT CLAIM) MUST BE SEVERED FROM THE ARBITRATION AND RESOLVED IN COURT, SUBJECT TO YOUR AND OUR RIGHT TO APPEAL THE COURT’S DECISIONS, AFTER ALL OTHER CLAIMS HAVE BEEN ARBITRATED. THE FOREGOING SHALL COLLECTIVELY BE DEFINED AS THE (“CLASS ACTION WAVIER”).
21. ALTERNATIVE DISPUTE RESOLUTION
If any dispute may not be resolved through mutual cooperation, you agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of these Terms and Conditions of Sale or your use of, or access to, the Website, will be resolved in accordance with these Terms and Conditions of Sale. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS WE HAVE AGAINST EACH OTHER WILL BE RESOLVED.
Legal notices shall be sent to 130 W 57th Street, Suite 5A, Fifth Floor, New York, NY 10019, USA Attn: Legal (in the case of us) or your email address on file with us (in your case). Notice by us to you shall be deemed given twenty-four (24) hours after the email is sent. Alternatively, we may give you legal notice by mail to any physical address that you have on file with us. In such case, notice shall be deemed given three (3) days after the date of mailing, regardless of whether any such notice is returned to us. It is your responsibility to keep your contact information updated.
Any cause of action or claim you may have with respect to the Website, your purchase of our products, or any other aspect of your relationship with us must be commenced within one (1) year after the claim or cause of action arises.
All claims and disputes either arising out of or relating in any way to these Terms and Conditions of Sale, the transactions contemplated hereby, or any aspect of the relationship between us and you are to be settled by final and binding arbitration. This agreement to arbitrate (“Agreement to Arbitrate”) is broad. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The FAA governs the interpretation and enforcement of this Agreement to Arbitrate.
IN ALL EVENTS, EACH PARTY HEREBY KNOWINGLY, VOLUNTARY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS AND CONDITIONS OF SALE OR YOUR USE OF OR ACCESS TO THE WEBSITE. THE PARTIES FURTHER AGREE THAT, IF AND TO THE EXTENT THIS AGREEMENT TO ARBITRATE DOES NOT APPLY TO ANY CLAIM, THAT CLAIM WILL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees.
Arbitration Procedures. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should also apply these Terms and Conditions of Sale as a court would. All issues are for the arbitrator to decide, except that issues relating to the interpretation or enforceability of the CLASS ACTION WAIVER will be resolved by a court of competent jurisdiction. Other than issues related to the CLASS ACTION WAIVER, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of these Terms and Conditions of Sale including, but not limited to, any claim that all or any part of this Agreement to Arbitrate or the Terms is void or voidable.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s Supplementary Rules for Class Arbitrations will not apply. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under the Agreement to Arbitrate.
A party who intends to seek arbitration must first send notice to the other, by certified mail. A notice to us should be sent to 130 W 57th Street, Suite 5A, Fifth Floor, New York, NY 10019, USA Attn: Legal. We will send any notice to you to the physical address or email address we have on file associated with your account and/or use of the Website. All information called for in the notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If the parties are unable to resolve the claims described in the notice within 30 days after the notice is sent, we or you may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s website at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to us at the following address: 130 W 57th Street, Suite 5A, Fifth Floor, New York, NY 10019, USA Attn: Legal. In the event we initiate arbitration against you, we will send a copy of the completed form to any physical address we have on file associated with you (or your email address if no physical address is on file). Any settlement offer made by you or us shall not be disclosed to the arbitrator.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, either party may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Website users, but is bound by rulings in prior arbitrations involving the same Website user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate.
Severability. With the exception of any of the provisions in the CLASS ACTION WAIVER, if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
Opt Out Procedure. If you are a new user of the Website, you can choose to reject this Agreement to Arbitrate by notifying us in writing that you opt out (“Opt-Out Notice”).
Your Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms and Conditions of Sale for the first time. You must mail your Opt-Out Notice to: 130 W 57th Street, Suite 5A, Fifth Floor, New York, NY 10019, USA Attn: Legal.
Your Opt-Out Notice should state that you opt out of this Agreement to Arbitrate and provide your name, address, phone number and the email address(es) used to log in to the account(s) (if any) to which the opt-out applies. You must sign and date the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Terms and Conditions of Sale will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
Future Amendments to the Agreement to Arbitrate. Without prejudice to any other provision in these Terms and Conditions of Sale to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than a change to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding between the parties prior to the effective date of the change. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between the parties. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on the Website at least thirty (30) days before the effective date of the amendments and by sending notice via email to your email address on file with us. If you do not agree to the amended terms, you may close your account within the thirty (30) day period and you will not be bound by the amended terms.