This agreement (the "Terms & Conditions") is a legally binding agreement between you and Direct Wines, Inc., its affiliates, and its and their respective parents and subsidiaries (individually and collectively, "Company," "we," "our" or "us"), and applies to your use of the URL, https://www.Laithwaites.com, and all other websites, social media pages and accounts owned by the Company (individually and collectively, the "Websites"), and all mobile applications owned by the Company (together with the Websites, collectively, the "Company Sites"). Through the use of the Company Sites, the Company markets wines and related products directly to consumers, and offers consumers the opportunity to take advantage of the various services offered by the Company, including, without limitation, the opportunity to purchase wine and related products from Licensed Retailers and to register as members of the various Wine Clubs that the Company services (the "Wine Clubs") (collectively, the "Wine Services").
BY CLICKING THE "I AGREE" BUTTON OR BY USING THE COMPANY SITES, INCLUDING, WITHOUT LIMITATION, BY PARTICIPATING IN THE WINE SERVICES, YOU HEREBY AGREE TO THE FOLLOWING TERMS & CONDITIONS AND OUR {PRIVACY POLICY}.IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS & CONDITIONS AND PRIVACY POLICY, PLEASE DO NOT USE THE COMPANY SITES.
1.
Billing and Cancellations:
a. Subscription Programs. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY WILL USE A RECURRING PAYMENT SYSTEM IN CONNECTION WITH THE RESPECTIVE SUBSCRIPTION PROGRAM(S) YOU ARE ENROLLED IN. THE METHOD OF PAYMENT LINKED TO YOUR ACCOUNT WILL BE AUTOMATICALLY CHARGED IN ACCORDANCE WITH THE SHIPPING SCHEDULE OF YOUR APPLICABLE PROGRAM OR THE RENEWAL TERM OF THE PROGRAM. THERE IS NO ONGOING COMMITMENT TO REMAIN A MEMBER OF ANY SUBSCRIPTION PROGRAM. YOU MAY CANCEL YOUR MEMBERSHIP(S) AT ANY TIME BY CONTACTING US AT 1-800-649-4637 OR SIGNING INTO YOUR ACCOUNT ONLINE USING THIS {LINK}, AND WE WILL PROMPTLY STOP PROCESSING THE RECURRING PAYMENTS. SECTION 2 TITLED "ORDERS" SETS FORTH ADDITIONAL TERMS CONCERNING ANY CHANGES TO THE PRICE OF MEMBERSHIPS, AND YOUR ABILITY TO CANCEL YOUR MEMBERSHIP BEFORE BEING CHARGED FOR SUBSCRIPTION RENEWAL.
b.Individual Orders. You may cancel pending orders at any time prior to shipment by contacting us at 1-800-649-4637 and we will promptly cancel your order upon receipt of such a request. If you use a credit card in connection with your purchase, it will generally be charged by the end of the business day on which you place your order.
2.Orders:
Wines and offers may vary by state. 100% money-back guarantee applies to each wine, except as otherwise specifically stated in a consumer offer concerning certain fine and rare wines. All offers made pursuant to these Terms & Conditions are subject to availability. In the unlikely event that a particular wine selection is currently unavailable, either as part of an individual order or as part of a wine case shipped pursuant to a Wine Club membership, a substitute of similar style and of equal or greater value will be supplied in your shipment from the Licensed Retailer. The Company and the Licensed Retailer have the right to refuse orders should they not comply with the laws in your state or for any other reason and your payment will not be processed for such orders. The Company shall not be liable for any errors or omissions in product pricing or discounts offered to customers, and in the event of any such error or omission, the Company and the Licensed Retailer reserve the right to cancel affected orders and refund the charge to you as your sole remedy. The Company and the Licensed Retailer reserve the right to change product pricing and discounts offered at any time. We reserve the right to accept, refuse, or cancel membership or any order at our discretion, without cause. IN THE EVENT PRODUCT PRICING CHANGES WITH RESPECT TO WINE CLUB SHIPMENTS, THE COMPANY WILL NOTIFY YOU IN ADVANCE OF SUCH PRICE MODIFICATION AND YOU WILL HAVE THE OPPORTUNITY TO CANCEL YOUR MEMBERSHIP TO THE WINE CLUB PRIOR TO BEING CHARGED FOR YOUR NEXT SHIPMENT.
3.Contact Information: If you have any requests, questions or comments about your orders made in connection with the Wine Services, Wine Club membership registration, your Account, , the Company Sites, or any other questions or comments relating to our products and services, please contact us at:
Phone:
1-800-649-4637
Mail:
Laithwaites Wine
Attn: Customer Service
PO Box 7133
Port St. Lucie, FL 34985-9898
Email:
customerservice@laithwaites.com
When you send an email to us, you agree that we may electronically communicate with you. You acknowledge that communications by email may not be confidential.
4.Eligibility:You represent and warrant that you are at least twenty-one (21) years of age. In no event shall anyone under the age of twenty-one (21) years of age use the Company Sites or Mobile SMS Texting services. The Company hereby notifies you that parental control protections (e.g., computer software, filtering services, etc.) are commercially available and may be used to assist with limiting access to the Company Sites to minors. Please contact us for details. We may refuse to register any person or service any order at any time, at our sole discretion.
5.Sale of Alcohol Beverages: The Company’s role in the transactions contemplated by these Terms & Conditions is that of a service provider that enables you, the consumer, to purchase wine and related products from those retailers and wineries holding valid licenses issued by state alcohol beverage agencies allowing for the legal sale of wine (the "Licensed Retailers") and to participate in the services and/or any other product offers offered on the Company Sites. You acknowledge that all orders of wine and related products you place through the use of the Company Sites are processed and fulfilled by such Licensed Retailers, as the actual sellers of wine, and not by the Company. Any wine you purchase through the use of the Company Sites from the Licensed Retailers must be for personal consumption only and not for resale.
6.Customer Account and Guest Log-In: To utilize the Wine Services, you will be asked to register for a personal account with the Company (an "Account"), or log in to the Company Sites as a guest (a "Guest Log-In"), You represent and warrant that all information you provide in connection with registering your Account or using a Guest Log-In is complete and accurate, and that you are authorized to use the method of payment you provide in connection with your use of the Wine Services. We reserve the right to contact the service provider of your method of payment to conduct periodic security checks. You acknowledge and agree that you may never use another customer’s Account. For information on accessing and managing your account, please use this {
Link}.
7. Subscription Programs:
Wine Club Membership. The Company works with certain strategic partners (the "Brand Partners") in connection with the creation and operation of various branded Wine Clubs, which are promoted by us and our Brand Partners. Please review our {
PRIVACY POLICY} with respect to what information we share with third parties, including our Brand Partners, and the terms of such sharing. As a member of a Wine Club, you are generally entitled to receive one (1) case of wine (approximately twelve (12) bottles) every calendar quarter, plus, if any additional Holiday Shipments (approximately every twelve (12) weeks) while your particular Wine Club membership is active. The exact number of bottles, shipping schedule(s) and charges, applicable tax, and amount for bottle deposit fee (where applicable) which will vary between localities and Wine clubs will be charged to your method of payment. Charges will be provided to you in your order summary prior to your purchase of the applicable Wine Club membership. You will be notified in advance of shipments. Memberships to any particular Wine Club are limited to one (1) per household.
Unlimited Shipping Membership: Laithwaites Unlimited Shipping is a subscription plan that allows existing customers to receive an unlimited number of shipments for a fixed term. The Laithwaites Unlimited Shipping membership (“Membership”) will last for a fixed term of either one year or monthly, based on your subscription plan. The Membership will automatically renew for additional terms, based on your subscription plan, unless You cancel Your Membership. You will be notified by the Company in advance of the automatic renewal charge. Fair Use of Unlimited Shipping is limited to no more than six (6) shipments of three (3) bottles or fewer in any twelve (12)-month period. Violation of this may result in refusal of those shipments exceeding Fair Use or cancelation of membership. Laithwaites Unlimited Shipping does not include the additional Shipping Surcharges required for Alaska, Hawaii, and Colorado. Member discounts are available on eligible bottles and cases only as indicated. Where indicated a ten-percent (10%) discount applies to individual bottles when members reach a twelve (12)-bottle minimum order of any combination of eligible bottles. Additional terms of promotional offers may vary and will be specified in the applicable promotion, including birthday discounts. We reserve the right to accept, refuse, or cancel membership or any order at our discretion, without cause.
8.Shipping & Deliveries:
All orders are shipped by the applicable Licensed Retailers. Title to such wine and related products and risk of loss passes from the applicable Licensed Retailer to you upon the shipment of your order by the Licensed Retailer. The terms of shipment may vary from order to order. The remittance of any and all federal, state, sales use and excise taxes will be paid by the applicable Licensed Retailer related to such orders. The Licensed Retailers do not ship to states, counties or cities where shipping wine is prohibited by law. Our Licensed Retailers currently ship to the following states: AK ($75 FedEx shipping surcharge applies per case), AL, AZ, CA (offer may vary, recycling fee per container applies), CO ($0.29 retail delivery fee per case applies), CT, FL, GA, HI ($75 shipping surcharge per case applies), IA, ID, IL, IN (limited delivery area), KS, LA, MA, MD, ME, MI, MN (delivery fee applies on each invoice that meets or exceeds $100) MO, MT, NC, ND, NE, NH, NJ (offer may vary), NM, NV, NY, OH, OK, OR (not eligible for free gift), PA, SC, SD (offer may vary), TN, TX (voucher not required), VA, VT, WA, WI, WV, WY and to the District of Columbia (DC). Product availability and limitations on orders vary by state. Proof that you are twenty-one (21) years of age will be required upon delivery.
9. Promotional Offers: By participating in Subscription Programs and promotional offers, you will be eligible to receive various benefits provided from time to time by the Company and its Brand Partners, including, without limitation, receiving discounts, vouchers, and promotional offers with respect to wine, related products and Subscription Programs , unless prohibited by law. Promotional offers include, for example, the Refer-A-Friend offer, please use this {
Link} for more information on this offer. Other benefits include, for example, the gift card offer, please use this {
Link} for more information on this benefit. You will be notified of these special offers through various channels of communication, including, without limitation, email, mobile text messaging, or U.S. mail. Each such discount, voucher, and promotion offered to you will apply only to those specific wines, related products and Subscription Programs advertised, and will be governed by these Terms & Conditions, and the applicable terms of such promotions as communicated to you. A particular reference code may only be used once and may not be used in conjunction with any other discount, voucher or promotional offer unless the applicable advertisement provides otherwise. The value of any such offer is not refundable. All offers are subject to availability and the Company reserves the right to change discounts, vouchers or offers at any time, unless the applicable advertisement or law provides otherwise. Some states do not permit us to honor certain discounts, vouchers or offers, and the Company extends such discounts, vouchers and offers only if they are not prohibited by law. You will be notified prior to purchase, if you are located in any such state.
10. MOBILE SMS/TEXTING: Mobile Terms of Use: The company provides products and services that are accessible via a computer or mobile device. By signing up to receive text messages from us or by a third-party service provider on behalf of us, you acknowledge and agree that: (1) you are the current subscriber or customary user of the mobile phone number you provided to us in order to participate in the program; (2) you have read, understand, and agree to be bound by all these terms; and (3) we may send communications to your mobile device regarding those functions or services. You also agree that we may collect information related to your mobile device associated with your use of the features and areas which are accessible by your mobile device.
PLEASE NOTE: You agree that if the mobile telephone number you provided to receive text messages at any time becomes reassigned, terminated or otherwise no longer your current mobile telephone number, you will PROMPTLY NOTIFY the company of any such reassignment or termination by calling our customer service at 1-800-649-4637.
Message & data rates may apply: Data obtained from you in connection with this SMS service may include your mobile phone number, your carrier's name, opt-out status, and the date, time, and content of your messages. We may use this information to contact you and to provide you with the Program services. All data obtained is subject to our Privacy Policy
Supported Carriers: It is your responsibility to determine if your mobile carrier supports text messaging and if your mobile device is capable of receiving text messages. Note that standard messaging, data, and other fees may be charged by your carrier to engage in any activities which are available on your mobile device. If you have questions about these issues, please contact your carrier as we have no control, and are not responsible for such charges. Your receipt of our text messages is subject to the terms and conditions of your agreement(s) with your mobile carrier. Supported carriers may change from time to time, but currently include these SMS supported carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
Types of SMS/text message alerts: You may receive Transactional and/or Marketing SMS/text messages from us. In all cases, consent to receive text messages is not a condition of purchasing any goods or services, and message and data rates may apply:
Opting Out of SMS/text message alerts: You can cancel the SMS service at any time. To stop receiving text messages from the text messaging program, reply STOP to the telephone number from which you no longer wish to receive messages (i.e. the telephone number from which text messages are being sent). You may also contact Customer i.e. the telephone number from which text messages are being sent). You may also contact Customer Service at text messaging program. You acknowledge that after replying STOP, you may receive an additional communication confirming your opt-out status. Following such confirmation message, no additional text messages associated with the program will be sent to you unless you reactivate your subscription. This will only opt you out of the specific text messaging program associated with that mobile number. After opting out of receiving text messages, you cam always re-enroll 1-800-649-4637 anytime to opt-out of our text messaging program. You acknowledge that after replying STOP, you may receive additional communications confirming your opt-out status. Following such confirmation message, no additional text messages associated with the program will be sent to you unless you reactivate your subscription. This will only opt you out of the specific text messaging program associated with that telephone number. After opting-out of receiving text messages, you can re-enroll into our text messaging program by following the instructions for that program, at anytime. We would be happy to welcome you back.
Support/help: If at any time you forget what keywords are supported, just text “HELP” to the text message you received. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe. You may also receive help by contacting Customer Service at 1-800-649-4637.
11.Privacy Policy: Your use of the Company Sites is subject to our {
PRIVACY POLICY}, which we may amend from time to time, and you hereby agree to its terms.
12.Customer Conduct: You agree not to engage in any of the following activities:
(i) interfere with or inhibit the use of the Company Sites by other users;
(ii) use the Company Sites for commercial purposes for yourself and/or third parties (e.g., selling, or attempting to sell your purchases to others, etc.);
(iii) create an account using an alter-ego or by impersonating a third party, or providing any other false information;
(iv) copy, reverse engineer, or attempt to derive the source code of any part of the Company Sites;
(v) post any comment or product review on the Company Sites that is private, obscene, vulgar, violent, harassing, discriminatory or defamatory; or
(vi) use the Company Sites in a manner that would violate any of these Terms & Conditions or any applicable laws. We may investigate any reported violation of these restrictions or other provisions in the Terms & Conditions. If we determine that you are in violation of our Terms & Conditions, we may take any action that we deem appropriate, and you potentially may be subject to liability. Such action may include, without limitation, issuing warnings, immediate termination of your Account, removal of posted content, and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials or regulators and, in doing so, we may disclose any relevant information as provided in Company’s {
PRIVACY POLICY}.
13.Intellectual Property:
a.Access to Company Sites: The Company grants you the limited right to access and make use of the Company Sites as a user. The Company Sites, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Company Sites (the "Content") are owned by or licensed to the Company. Unless authorized in writing and in advance by the Company or the applicable rights holder, you may not sell, reproduce, copy, distribute, modify, display, publicly perform or otherwise exploit the Content for any public or commercial purpose. No provisions of these Terms & Conditions shall be construed to convey any property right or license to the Content unless expressly provided to the contrary.
b.DMCA. We respect the intellectual property rights of others and require that our users do the same. If you believe your work has been copied in a manner that constitutes copyright infringement, or you believe your rights are otherwise infringed or violated by anything on the Company Sites, you must notify us and give us an opportunity to correct the problem before taking any other action by sending an email to the following address: customerservice@laithwaites.com. The notification must include all of the following:
(i) a physical or electronic signature of the owner of the right claimed to be infringed or the person authorized to act on the owner’s behalf;
(ii) a description of the copyrighted work or other right you claim has been infringed or violated;
(iii) information reasonably sufficient to locate the material in question on the Company Site;
(iv) your name, address, telephone number and e-mail address;
(v) a statement by you that you have a good faith belief that the disputed use is not authorized by the rightful owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the owner of the right claimed to be infringed or violated or are authorized to act on behalf of the owner.
14.Third Party Servicers and Release: You may have contact or other interaction with third parties in connection with clicking third party links on the Company Sites and being directed to third party websites (the "Third Party Servicers"). You hereby acknowledge and agree that you are proceeding at your own risk and any such Third-Party Servicers are not under the control of the Company. The Company shall be in no way responsible or liable for any acts, omissions, breaches, representations or warranties made by any such Third-Party Servicers, or for any losses, injuries, or other damages you incur in connection with your contact or other interaction with such Third Party Servicers ("Third Party Claims"). YOU HEREBY RELEASE THE COMPANY, OUR OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS AND MEMBERS FROM ANY AND ALL SUCH THIRD PARTY CLAIMS NOT ATTRIBUTABLE TO THE COMPANY’S NEGLIGENT OR INTENTIONAL ACTS
15.Disclaimer and Notice of Violations:
a."As Is." THE COMPANY SITES AND THE CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. YOUR USE OF THE COMPANY SITES IS SOLELY AT YOUR OWN RISK.
b.Good Faith Compliance. The Company Sites may be accessed from many locations. You acknowledge and agree that consumer protection laws vary by location and that the Company has made a good faith attempt to comply with all such applicable laws, including, by way of example and not limitation, the California Subscription Act and similar statutes in other states. You agree that you will notify the Company if you believe that it is not in compliance with any laws and provide the Company with an opportunity to cure any alleged violations before invoking the Dispute Resolution mechanisms set forth in {Section 22}.
16.Termination: The Company reserves the right to terminate your Account and/or any Wine Club memberships at any time, with or without cause or notice, and which shall be effective immediately. If you wish to terminate your Account, you may do so by contacting us using the contact information provided in {Section 3} (titled "Contact Information") above. You acknowledge and agree that any orders shipped before such termination are non-refundable. Sections 11-24 of these Terms & Conditions shall survive any such termination.
17.Modification: The Company reserves the right to modify any of the terms and conditions contained in these Terms & Conditions, at any time, at our sole discretion. We will notify you of any such modifications by posting a notice on the Company Sites promptly following any such modification. Your continued use of the Company Sites or your Account following such notification will be confirmation of your acceptance of such changes, except that the Company will give you prior written notification of material changes to the terms of your Wine Club membership and provide you with an opportunity to cancel your Wine Club membership. The Company Sites are subject to constant change. You will not be eligible for any compensation because you cannot use any part of the Company Sites or because of a failure, suspension or withdrawal of all or part of the Company Sites.
WE RESERVE THE RIGHT TO CHANGE THE TERMS OF ANY PRODUCTS, GOODS, OR SERVICES THAT WE OFFER AND/OR YOU PURCHASE. THIS INCLUDES WITHOUT LIMITATION CHANGES TO PRICES, SHIPPING AND HANDLING, DELIVERY TIMES, AND/OR PACKAGE CONTENTS. ALL PRICES, DISCOUNTS, AND PROMOTIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE, HOWEVER, WE MAY NOT CHANGE OUR PRICES MORE THAN ONCE IN ANY PERIOD OF TWELVE (12) CONSECUTIVE MONTHS IN AN AMOUNT GREATER THAN $10.00, UNLESS A CHANGE IS A MATERIAL INCREASE THAT ARISES IN CONNECTION WITH A CHANGE IN ANY INCREASE IN COSTS TO THE SUPPLIER OR SHIPPER. AT OUR DISCRETION, UNLESS REQUIRED BY LAW, WE MAY PROVIDE YOU WITH PRIOR NOTICE OF ANY MATERIAL CHANGES. BY AGREEING TO THESE TERMS AND CONDITIONS, YOU WILL BE DEEMED TO HAVE ACCEPTED THE CHANGES.
18.Indemnification: You agree to indemnify, defend and hold the Company and its employees, officers, directors and shareholders harmless to the fullest extent permitted by law from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys’ fees and costs) resulting from any claim, suit or proceeding, threatened or otherwise, at law or in equity made or brought against us, and caused by, arising out of, resulting from or attributable to:
(i) your misuse of the Company Sites;
(ii) anything you post to the Company Sites;
(iii) your violation of these Terms & Conditions;
(iv) your violation of the rights of any third parties; and/or
(v) use of the Company Sites by any other person accessing the Company Sites using a computer or Internet access account that you provided to such person.
19.Limitation of Liability:TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR ANY OTHER COMMERCIAL DAMAGES, OR LOSSES, EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
20.Governing Law: These Terms & Conditions and all issues collateral thereto shall be governed and construed in accordance with the laws of the State of New York pertaining to contracts made and to be performed entirely therein and without regard to its conflict of laws principles.
21.Notice for California Users: Under California Civil Code Section 1789.3, residents of California who use the Company Sites are entitled to know that they may file grievances and complaints with: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at dca@dca.ca.gov.
22.Dispute Resolution, including Arbitration and Class Action Waiver:
a. You and we agree that in the event of any dispute between us, you and we will first try to resolve the dispute by talking with each other. Accordingly, neither you nor we may start a formal proceeding for at least sixty (60) days after one of us notifies the other in writing of a dispute. You will send your notice to us at the address provided in {Section 3} (titled "Contact Information") above, and we will send our notice to you at your billing address. The notice must be sent by U.S. mail, Federal Express or UPS, with confirmation of delivery requested.
b.IF YOU AND WE ARE UNABLE TO RESOLVE OUR DISPUTE BY TALKING TO EACH OTHER, YOU AND WE EACH AGREE THAT WE WILL SUBMIT THE DISPUTE TO BINDING ARBITRATION, SUBJECT TO SECTION 22(F) BELOW. To the fullest extent permitted by law, any controversy or claim arising out of or relating to our relationship, these Terms & Conditions (including any dispute as to their breach, termination, enforcement, interpretation or validity), our {PRIVACY POLICY} (including any dispute as to its breach, termination, enforcement, interpretation or validity), the Company Sites, any promotional offers or any product or service provided under or in connection with our relationship will be resolved exclusively by binding arbitration, subject only to Section 22(f) below. The arbitration shall be conducted before JAMS using a single arbitrator under the JAMS Comprehensive Arbitration Rules and Procedures (or their replacement) that are in effect at the time the arbitration is initiated and under the terms set forth in this Customer Agreement. The arbitrator shall be chosen by mutual agreement from a slate of ten (10) potential arbitrators proposed by either you or us and, if you and we are unable to agree, the arbitrator shall be chosen by the JAMS administrator. In the event of a conflict between the JAMS rules and these Terms & Conditions, these Terms & Conditions shall govern. Arbitration is not a court proceeding. The rules of arbitration differ from the rules of court and there is no judge or jury in an arbitration proceeding. YOU ARE HEREBY WAIVING YOUR RIGHT TO HAVE A JURY TRIAL OR TO GO TO COURT, other than as provided in Section 22(f) below. You may, in arbitration, seek any and all remedies otherwise available to you where you reside, other than as waived in these Terms & Conditions. You have a right to hire an attorney to represent you in arbitration. The arbitration shall permit the discovery of relevant information that is not privileged or protected.
c. The arbitration will be conducted at the JAMS office nearest to your hometown, unless you and we mutually agree to a different location or to a telephonic arbitration. If you decide to initiate arbitration after you and we are unable to resolve the dispute between us, we will pay the costs of the arbitration proceeding, including the arbitrator’s fees and case management fees, for claims in which you or we seek less than $10,000 from the other party. For claims in which you or we seek $10,000 or more from the other party, we shall evenly share the costs of arbitration. If you are required to pay a fee or deposit to JAMS to initiate your arbitration, we will reimburse you. We will not, however, pay your attorney’s fees. To start an arbitration, you or we must do the following three things:
i. Write a Demand for Arbitration. The demand must include a description of the dispute and the amount of damages or other relief sought. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
ii. Send two (2) copies of the Demand for Arbitration, plus the appropriate case management fee (which we will reimburse to you upon proof of payment) and reference to these Terms & Conditions to: JAMS 620 Eighth Ave., 34th Floor New York, NY 10018 1-212-751-2700
iii. Send one (1) copy of the Demand for Arbitration to the other party.
d. The arbitrator’s decision shall be final and binding and may be enforced by any state or federal court that has jurisdiction; provided, however, that the arbitrator shall not have authority to make errors of law and any arbitration award may be challenged if the arbitrator does so. The arbitrator shall give a written statement of the disposition of each claim and the award shall provide a concise written statement of the essential findings and conclusions upon which it is based. You and we agree that the Federal Arbitration Act shall govern this agreement to arbitrate.
e. You and we agree not to join or consolidate claims in arbitration by or against the other. You and we also agree that you and we will not be entitled to bring any claim as a representative member of a class or in a private attorney general capacity against the other, or against our service partners, Licensed Retailers, retailers, licensors, officers, directors, agents, employees, affiliates or predecessors. Accordingly, you and we agree that the JAMS Class Action Procedures (or their replacement) will not apply in any arbitration between us. YOU HEREBY WAIVE ANY RIGHT TO BRING A CLASS ACTION OR PRIVATE ATTORNEY GENERAL CLAIM. You and we retain our respective rights to make any complaint to regulatory agencies or governmental investigators. A court may sever any portion of this Section 22 that it may find to be unenforceable, except for the prohibition on class, representative or private attorney general proceedings. You understand and agree that the waivers of rights in this Section 22, including the waivers of the rights to bring a lawsuit in court and to assert a class action, are knowing and voluntary.
f. In lieu of initiating an arbitration, you may instead choose in your sole discretion to file an individual action in a small claims court. If you do so, we do not agree to pay any of your fees or costs. The provisions of Subsection 22(e) above remain effective, even if you elect to file in a small claims court.
24.Waiver of Statutory Claims:" By agreeing to these Terms & Conditions, you are giving up statutory claims or rights that you may have under your state’s laws, including claims for certain forms of relief or for attorneys’ fees. You agree that your waiver of any such laws does not violate your state’s laws, including, by way of example and not limitation, New Jersey’s Truth-in-Consumer Contract, Warranty & Notice Act.
25.Miscellaneous:
a. Severability. In the event that any provision of these Terms & Conditions (other than Subsection 22(e)) is declared void or unenforceable, such provision shall be deemed severed from these Terms & Conditions, and these Terms & Conditions shall otherwise remain in full force and effect unless its purpose cannot be effected absent the severed provision.
b. Entire Agreement. These Terms & Conditions, our {PRIVACY POLICY} and the terms and conditions that may be posted on the Company Sites or of any promotional offers we make and you accept ("Company Sites Agreements") constitute the entire agreement between you and us with respect to the subject matter hereof, and supersede all prior agreements, whether written or oral. You confirm that you have not relied on any representation except insofar as the same has expressly been made a representation in these Company Sites Agreements. These Company Sites Agreements, including these Terms & Conditions, shall not be modified other than in writing.
c.Notices. Unless otherwise specified to the contrary herein, all notices due under these Terms & Conditions shall be in writing and shall be deemed to have been made or given when any such notice is received, if personally delivered or sent by certified or registered mail; when receipt is electronically confirmed, if sent by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight courier service. Electronic notices to us shall be sent to the email address provided in {Section 3} (titled "Contact Information") above.
d.Assignment. These Terms & Conditions are personal to you and your Account. You may not assign these Terms & Conditions without the prior written consent of the Company. The Company may assign any of its rights and delegate any of its duties hereunder at any time, without your consent, at its sole discretion. These Terms & Conditions will inure to the benefit of the Company’s successors, assigns and licensors.
e.Relationship of the Parties. Nothing contained herein will be construed as creating any relationship of employer/employee, partnership, agency, joint venture, or otherwise between you and the Company, nor will these Terms & Conditions be construed as conferring on any party any express or implied right, power, or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other party.
f. Force Majeure. The Company shall not be liable for performance of its obligations under these Terms & Conditions if it is prevented or delayed from performing such obligations as a result of
(i) any provision of any present or future law or regulation of any state or of the United States,
(ii) any act of God, war, civil unrest or emergency condition, or
(iii) any other circumstances beyond the reasonable control of the Company.
g.Waiver. Any waiver of either party’s rights hereunder must be in writing. No waiver by either party of any breach or default of any of the provisions contained in these Terms & Conditions and required to be performed by the other party shall be construed as a waiver of any succeeding breach of the same or of any other provision.
h.Errors and Inaccuracies. The Company strives to provide complete, accurate, up-to-date information on the Company Sites. Unfortunately, despite those efforts, human or technological errors may occur. For example, the Company Sites may contain typographical mistakes, inaccuracies or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after an order has been submitted, and to change or update information at any time without prior notice. In addition, you acknowledge that the particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors and look of products offered on the Company Sites.
PLEASE PRINT A COPY OF THESE TERMS & CONDITIONS FOR YOUR RECORDS. If you are unable to print from your device, please contact the Company using the information in {Section 3} (titled "Contact Information") above to request a hard copy of these Terms & Conditions.
Terms & Conditions Effective as of the Following Date: December 7, 2023
