Please read these Terms and Conditions (the “Terms and Conditions”) carefully. By creating a L148NY@Home account, ordering a shipment, receiving Items, or otherwise participating in the L148NY@Home Program, Clients represent and warrant that they have read and understood the Terms and Conditions, and agree to be bound by them. The Terms and Conditions include a class action waiver and require binding arbitration on an individual basis to resolve disputes, in lieu of jury trials.
Clients receive Lafayette 148 New York (including “we,” “us,” or “our”) apparel that their Personal Stylist Advisors (“Advisors”) select for them (“Items”) based on their L148NY@Home fashion profile. They have five (5) business days after arrival to try on the Items and only pay for those that they do not return in accordance with the Terms and Conditions.
To become a Client, a customer must create an account (“Account”) by providing Lafayette 148, Inc. certain personal, contact, and payment information (“Account Information”). In creating Accounts, Clients represent and warrant that: (a) they are creating such Accounts for themselves, (b) they do not already have an active Account, (c) they have the authority to enter and participate in the L148NY@Home Program (the “Program”), (d) all Account Information submitted is true and accurate, and (e) they will maintain the accuracy of Account Information. Clients also authorize us to (a) retain Account Information, (b) use Account Information to charge for (or place a pre-authorization hold on) Items, and (c) assume that a person who signs on with a Client’s Account Information is in fact the Client or someone the Client has authorized to access the account. Clients should notify us immediately if they become aware that their Account Information is being used without their authorization. We reserve the right to take whatever action we deem necessary to preserve the security of the Program and Account Information, including without limitation terminating an Account or requesting additional information to authorize transactions on an Account.
Clients will receive Items by standard two-day shipping free of charge. Upon receipt, all Items will be deemed accepted by, and title to and risk of loss passes to, Clients.
Clients may return any or all of the Items. Items shall be returned in their original condition (with all hangtags attached) in the original box and prepaid shipping label, postmarked no later than five (5) business days after the Clients receive them. Clients will retain title to the returned Items and risk of loss of such Items will remain with Clients until we receive the returned Items and we determine that such Items are returned in their original condition (with all hangtags attached) in the original box and prepaid shipping label, postmarked no later than five (5) business days after the Clients receive them.
Clients may request an exchange any of the Items for a different size or color by calling their Advisors. An exchange may not be available for every request. Items approved by Advisors for exchange shall be returned in their original condition (with all hangtags attached) in the original box and prepaid shipping label, postmarked no later than five (5) business days after the Client receives them. Clients will retain title to the exchanged Items and risk of loss of such Items will remain with Clients until we receive the exchanged Items and we determine that such Items are returned in their original condition (with all hangtags attached) in the original box and prepaid shipping label, postmarked no later than five (5) business days after the Client receives them
When Items are shipped to Clients, we will place a $498 pre-authorization hold on their method of payment. Clients are responsible for state and local sales taxes that apply to their orders where we elect or are required to collect and remit such taxes. If we do not collect the applicable sales tax, Clients are responsible for payment of the applicable use taxes. Clients will be charged for those Items that are not received in their original condition (with all hangtags attached) in the original box using the prepaid shipping label, postmarked no later than five (5) business days after Clients receive them. At the conclusion of the transaction, we will release the pre-authorization hold that takes seven to 30 days for processing.
Certain of the names, logos, and other materials displayed on Items or in the Program constitute trademarks, tradenames, service marks or logos (“Marks”) of Lafayette 148 New York or other entities. Ownership of all such Marks and the goodwill associated with such Marks remains with us or those other entities. Clients are not authorized to copy, modify, or otherwise use such Marks. Clients furthermore understand and acknowledge that the software, code, and proprietary methods and systems used in the Program, and the materials, information, and content made available or displayed by us through the Program are owned by us or our licensors and subject to intellectual property and proprietary rights and laws. Subject to the Terms and Conditions, we grant Clients a non-transferable, non-exclusive, revocable, limited license to use the Program, solely for their own personal, noncommercial use. Any use of third party software provided in connection with the Program will be governed by such third parties’ licenses and not by the Terms and Conditions.
By participating in the Program, Clients agree that we, in our sole discretion, may immediately restrict, suspend, or terminate their access to the Program at any time, for any reason, in our sole discretion, without any liability to Clients or any other party for such restriction, suspension, or termination. At our discretion, we may notify Clients of such changes by email or other reasonable means.
We will notify Clients of any changes to the Terms and Conditions by posting the new Terms and Conditions at www.lafayette148ny.com/L148NYatHome-terms and updating the “Last Revised” date at the end of the webpage. At our discretion, we may also notify Clients of certain changes by sending them an email to the email address associated with their Accounts. Clients are responsible for providing us with their current e-mail address, which they may update when logged in to their Accounts. Changes to the Terms and Conditions will be effective immediately following our posting of the changes. Continued participation in the Program, including receiving Items, following such changes will indicate acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Clients should regularly check www.lafayette148ny.com/L148NYatHome-terms to view the then-current Terms and Conditions.
DISCLAIMER OF WARRANTY
All content, Items and services included in or otherwise made available through the Program are provided by Lafayette 148 New York “with all faults” and on an “as is” and “as available” basis, unless otherwise specified in writing. Lafayette 148 New York makes no representations or warranties of any kind, whether express or implied, as to the operation of the Program or any content, Items or services included on, or otherwise made available to Clients through, the Program, unless otherwise specified in writing, including, but not limited to, any warranties of merchantability, fitness for a particular use or purpose, non-infringement, quiet enjoyment, and accuracy. Clients expressly agree that their use of the Program and receipt of Items are at their sole risk. We make no warranty that the Items or the Program will meet the requirements of Clients, or that the Program will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Items, or the Program, or that defects in the Items, or the Program will be corrected. We specifically disclaim any liability associated with the use of the Items (e.g., rashes that may develop from wearing the Items or dyes that bleed from the Items onto other items) and Clients agree that they will not sue Lafayette 148 New York for any claim related to any Items purchased through the Program.
Some states do not allow exclusion of implied warranties, so the exclusions may not apply in individual cases. Clients may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
LIMITATION OF LIABILITY
Clients acknowledge and agree that we are only willing to collect payment, facilitate the fulfillment of orders, and provide access to the Program if Clients agree to certain limitations of our liability to them and to third parties. Clients understand that to the extent permitted under applicable law, in no event will we or our officers, employees, directors, parents, subsidiaries, affiliates, agents, or licensors be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, lost opportunities, or business interruptions or other intangible losses (even if such parties were advised of, knew of or should have known of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy), arising out of or related to Clients’ use of or access to, or the inability to use or to access, the Program, regardless of whether such damages are based on contract, tort (including negligence and strict liability), warranty, statute, or otherwise. We will not be liable for any damages arising from the Items or for any information appearing on any other site linked to the Program. If Clients are dissatisfied with any portion of the Program, the sole and exclusive remedy of Clients is to discontinue use of the Program. Our total liability for all claims arising from or related to the Program is limited, in aggregate, to the greater of (i) the total amount of Clients’ Program orders in the three (3) months prior to the date of the event giving rise to our liability, or (ii) 25% of Clients’ last Program order.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to certain Clients. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
Without limiting the foregoing, under no circumstances will we or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
Clients agree to indemnify, defend and hold harmless Lafayette 148 New York, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (i) their use of the Items or the Program (except to the extent prohibited by law); (ii) their violation of the Terms and Conditions; or (iii) their violation of any rights of any other person or entity.
ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY
Please read this Section (“Arbitration Agreement”) carefully. It is part of Clients’ contract with us and affects their rights. It contains procedures for mandatory binding arbitration and a class action waiver. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms and Conditions or the use of the Program that cannot be resolved informally or in small claims court will be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings will be held in English. This Arbitration Agreement applies to Clients and us, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, assigns, suppliers and licensors as well as all authorized or unauthorized users or beneficiaries of the Program.
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to us should be sent to: Lafayette 148, Inc., 148 Lafayette Street, 2nd Floor, New York, NY 10013, Attn: Legal Department. After the Notice is received, the parties may attempt to resolve the claim or dispute informally. If the parties do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled. Arbitration Rules: Arbitration will be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section. If AAA is not available to arbitrate, the parties will agree to select an alternative ADR Provider. The rules of the ADR Provider will govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms and Conditions. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of Clients’ residence, unless Clients reside outside of the United States, and unless the parties agree otherwise. If Clients reside outside of the U.S. the arbitrator will give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants Clients an award that is greater than the last settlement offer that we made to Clients prior to the initiation of arbitration, we will pay Clients the greater of the award or $2,500.00. Each party will bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration and will pay an equal share of the fees and costs of the ADR Provider.
If non-appearance based arbitration is elected, the arbitration will be conducted by telephone, online and/or based solely on written submissions; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
If either party pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of the parties, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms and Conditions. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon the parties.
The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically subject only to very limited review by a court. In the event any litigation should arise between the parties in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, the parties waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts will be of no force and effect and will be severed and the remainder of this Arbitration Agreement will continue in full force and effect.
Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.
This Arbitration Agreement will survive the termination of Clients’ relationship with us.
Notwithstanding the foregoing, either party may bring an individual action in small claims court or seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures will not be deemed a waiver of any other rights or obligations under this Arbitration Agreement. Furthermore, notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets will not be subject to this Arbitration Agreement.
In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit exclusively to the personal jurisdiction of the courts located within New York, New York for such purpose.
The Terms and Conditions and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms and Conditions. The Terms and Conditions are personal to Clients, and Clients may not transfer, assign or delegate their right or duties under the Terms and Conditions to anyone else and any attempted assignment or delegation is void. Clients acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of their obligations hereunder. The paragraph headings in the Terms and Conditions, are included only for convenience and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of the Terms and Conditions will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. The Terms and Conditions constitute the complete and exclusive agreement between Clients and us with respect to the subject matter hereof, and supersede all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of the Terms and Conditions, or portion thereof, to be unenforceable, that provision of the Terms and Conditions will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the Terms and Conditions will continue in full force and effect. We will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. The Program may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Clients agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from us, or any Items utilizing such data, in violation of the United States export laws or regulations.
Even after Clients’ rights under the Terms and Conditions are terminated, all provisions of the Terms and Conditions which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, indemnification obligations, and limitations of liability.
Clients should refer any questions about the Terms and Conditions to their Advisors.
Effective Date: Last revised [04/18/2018]