TERMS & CONDITIONS
The Terms govern your use of the retail, subscription, and other services we make available on this Site (“Services”).
By viewing or using our Site, you agree to these Terms and those posted by us from time to time.
Rachel Zoe reserves the right to amend, change or modify these Terms at any time. No modification of these Terms by any party other than Rachel Zoe shall be valid or enforceable against Rachel Zoe unless expressly agreed to by Rachel Zoe in a writing signed by an authorized Rachel Zoe representative. When we post changes to these Terms, we will revise the “Last Updated” date at the top of the Terms. Your continued use of the Sites after any changes or revisions to these Terms become effective shall indicate your agreement with the terms of such revised and then-current Terms. You may be accessing our Site from a computer or mobile phone device and these Terms govern your use of the Site regardless of how you access it.
If you have any questions about these Terms, please contact us by email
at email@example.com or call us at (855) 453-2442.
1.1. Eligibility. To use the Site you must be, and represent and warrant that you are, of legal age (18 years of age or older, or, if you have parental consent, 13 years of age or older) and competence. By using the Site on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Site constitutes that third party’s acceptance
of these Terms. In addition, if you have been previously prohibited from accessing the Site or the website of any of our affiliates, you are not permitted to access the Site.
1.2. License to Use the Site. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access the Site and use the Services for your personal, non-commercial use, and as we otherwise intend. Rachel Zoe reserves the right to monitor the Services for the purpose of determining that your usage complies with these Terms.
1.3. Prohibited Conduct. You may not use the Site or Services other than as expressly permitted by Section 1.2 above. Without limitation, you will not, directly or indirectly: (a) copy, reproduce, modify, distribute, display, create derivative works of or transmit any content on the Site; (b) use the Services or Site commercially; (c) reverse engineer, decompile, tamper with or disassemble the technology used to provide the Services or Site (except as and only to the extent any foregoing restriction is prohibited by a non-waivable provision of applicable law); (d) interfere with or damage the Services, Site, or any underlying technology; (e) impersonate or misrepresent your identity or affiliation; (f) attempt to obtain unauthorized access to the Services or Site; (g) collect information about users of the Services, the Site, or the Service; (h) violate, misappropriate or infringe a third party’s intellectual property or other right, or any social media platform terms; (i) violate any law,
rule, or regulation, or (j) interfere with any third party’s ability to use or enjoy, or our ability to provide, the Services or Site.
2. ACCOUNT REGISTRATION; ACCOUNT USE
2.1. Account Registration. If you create an account, you must provide us with complete and accurate information. You must promptly update such information to keep it complete and accurate. You are entirely responsible for maintaining the confidentiality of your password and account. You are entirely responsible for any and all activities that occur under your account. You may not use anyone else’s account at any time. We may remove or reclaim your username if we believe it is
appropriate (such as in response to a trademark claim).
2.2. Security of Your Account. You agree to notify Rachel Zoe immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge, to the fullest extent permitted by applicable law. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred
by Rachel Zoe or a third party due to someone else using your account.
2.3. No Obligation to Retain a Record of Your Account. Rachel Zoe has no obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Services.
3. SUBSCRIPTIONS AND PROMOTIONS
3.1. Subscriptions. We offer CURATEUR subscription plans (each, a “Subscription”) for regular shipments of curated items Rachel Zoe may provide from time to time. Our Subscriptions are also subject to our CURATEUR Subscription Terms, which provide additional information regarding
Subscriptions (including term, delivery frequency, and pricing).
3.2. SUBSCRIPTIONS AUTOMATICALLY RENEW. YOU ACKNOWLEDGE AND AGREE THAT EACH SUBSCRIPTION AUTOMATICALLY RENEWS UNLESS YOU CANCEL IT OR WE SUSPEND OR TERMINATE IT IN ACCORDANCE WITH THESE TERMS.
3.3. Cancellation Policy. Subscriptions may be cancelled at any time, subject to these Terms and the CURATEUR Subscription Terms. In order to cancel your Subscription, you must visit your subscription Account Page or contact us contact us here, and follow the instructions given. There are no cancellation fees.
3.4. Promo Codes. CURATEUR may, from time to time in its sole discretion, offer certain promotional codes for discounts. Promotional codes are non-transferable and are not redeemable for cash, credit, or toward previous purchases. The promotion code must be redeemed at the time of checkout, unless otherwise advertised, and cannot retroactively be applied to a purchase. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer or promotional discount, and must be redeemed by the date published, if provided. Lost promotional codes cannot be replaced. Limit one promotional code per customer. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by Rachel Zoe at any time in its sole discretion.
4. TERMS OF SALE
The following terms apply to your purchase of the products offered on the Site, whether by way of a Subscription, “add-on” product, or otherwise (“Products”).
4.1. Product Descriptions. We try to make the Site thorough, accurate, and helpful to our customers. Nonetheless, there may be times when certain information contained on the Site may be incorrect, incomplete, inaccurate, or appear inaccurate because of the browser, hardware, or other
technology that you use. We apologize in advance for any such errors that may result in an incorrect price, inaccurate description, item unavailability or otherwise affect your order. We reserve the right to correct errors (whether by changing information on the Site or by informing you of the error and giving you an opportunity to cancel your order) or to update Product information at any time without notice.
4.2. Availability and Pricing. Rachel Zoe reserves the right to change the prices and available Products and Subscriptions at any time. Any Subscriptions you have already paid for as of the date of such notice will not be affected by such change for the then-current term of the Subscription.
Quantities of some Products may be limited and stock cannot always be guaranteed. Products offered for sale on this Site are for sale only in the United States and Canada and all prices are quoted in U.S. dollars. We may occasionally make errors in the stated prices on this Site. If a product’s correct price is higher than the listed price, we will, in our discretion, either confirm the correct price with you or cancel your order and notify you of such cancellation.
4.3. Purchasing Products. The display of Products on the Site invites you to make us an offer to buy the Products. Your order is an offer to buy the Products, which we accept only by shipping the Products ordered. Any confirmation that you receive after placing an order does not constitute an
acceptance of your offer, and is subject to correction before shipment in the event of inaccuracies, errors, Product unavailability, or for any other reason.
4.4. Orders. We have the right to refuse or limit any orders, limit quantities, and Subscriptions. We will not be liable if a Product is unavailable or if shipment is delayed. All orders are non- cancelable; we may grant or deny cancellation requests for individual orders in our sole and absolute discretion. This sentence does not apply to Subscriptions, cancellation of which is subject to Section.
4.5. We reserve the right to provide substantially similar products to fulfill your order.
4.6. Returns. We do not allow returns or substitutions of Products. All sales are final.
4.7. Damaged or Incomplete Shipment. If you receive a damaged or incomplete shipment of Products, or if you are otherwise unhappy with any Product, please contact us firstname.lastname@example.org. We must receive notice of a damaged or incomplete shipment within two (2) weeks of receipt (as shown on by our common carrier’s shipping information). Any refunds or
replacements are made solely in our discretion.
4.8. Payment. You authorize us (and any payment processor) to charge your payment card for all purchases you make, including regularly for Subscriptions. We accept the forms of payment stated on the Site and, for credit card payments, charge your credit card when your order is processed. The bank issuing your credit card may control when to release funds in the case of an order cancellation or refund. We reserve the right to use the payment information you provide us in connection with this payment to provide better service to you should you wish to use our service again in the future and to protect us from fraud and other losses. Completion of a payment transaction is contingent upon:
(a) you providing complete personal, account, transaction and any other information needed,
(b) authorization of the payment by your credit or debit card company, and (c) acceptance of your payment. You may cancel your payment prior to your final submission of it to us. We may, in our sole discretion, cancel your payment at any time by providing notice to you through your contact information or by a notice when you attempt to make a payment. We may cancel a payment or prevent you from initiating future payments for any reason, including, without limitation, the following: (i) if you attempt to use the Services in breach of any applicable law or regulation, including the card network rules or regulations; (ii) if you use the Services in breach of these Terms; (iii) if we suspect fraudulent, unlawful or improper activity regarding a payment; (iv) if we detect, in our sole discretion, that your payments have excessive disputes, high reversal rates or present a relatively high risk of losses; or (v) failure to cooperate in an investigation or provide additional information when requested.
4.9. Transfer of Title and Risk of Loss/Damage. Title to and the risk of loss/damage of all Products passes from us to you at the time we deliver the Products to the common carrier for shipment. By purchasing Products on the Site for shipment, you are asking us to engage a common carrier to deliver your order. In doing so, we are providing a service to and acting on behalf of you. We reserve the right to choose any and all procedures, packaging and the common carrier of sold Products. We may not be able to have your order shipped to a post office box, to certain addresses or on certain days. We reserve the right to ship your order in multiple boxes or shipments.
4.10. Taxes. Stated prices do not include any customs duties, sales, use, value-added, excise, federal, state, local or other taxes. You are solely responsible for the payment of such taxes related to your purchase. We have the right to charge you for any taxes that we believe we are required to pay or collect related to your purchase. For sales to the UK, please see additional terms and conditions here.
4.11. Gift Certificates. Gift certificates will expire or decline in value, or not, in accordance with the laws of the purchaser’s location at the time of purchase.
5. INTELLECTUAL PROPERTY; THIRD-PARTY CONTENT AND SERVICE
5.1. Intellectual Property Rights. All content on the Site, or otherwise made available via the Site, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like (“Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of theSite and/or Services (“Site Design”), and all software and other technology used to provide the Site and/or Services (“Technology”), are owned by or licensed to Rachel Zoe and/or its affiliates. Content is provided to you “as is” for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever. We reserve all rights not expressly granted in and to the Site, Content, Marks, Site Design and Technology. Using the Site and/or Services does not give you any
ownership of or right in or to any Content, Marks, Site Design or Technology.
5.2. Third-Party Content. The Site may contain information and content provided by third parties.
We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content. In addition, the Site may contain links to third-party websites. Rachel Zoe is not responsible for the content on any linked site or any link contained in a linked site. We do not endorse or accept
any responsibility for the content on such third-party sites.
6. CONTRIBUTIONS TO RACHEL ZOE
Any text, photographs, artwork, ideas, questions, reviews, comments, suggestions or other content that you submit or post to the Site or otherwise provide to us are referred to as “User Content.” The following Terms apply to User Content:
6.1. License to Rachel Zoe. By sharing, submitting or uploading any User Content, you grant Rachel Zoe a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicensable and transferable license to use, copy, distribute, display, publish, perform, sell, transmit, adapt, translate,
modify, reverse-engineer, disassemble and create derivative works from your User Content in any manner existing now or created in the future. Subject to the license above, you retain ownership of User Content.
6.2. Waiver of Moral Rights. You irrevocably waive and agree not to assert any rights, including any “moral rights,” that you have to prevent us from exploiting the rights granted in Section 6.1.
6.3. Right to Name and Likeness. You also grant us the right to use and display the name, photograph and any other biographical information that you submit with any User Content in connection with such User Content.
6.4. Your Responsibility for User Content. You acknowledge and agree that you are solely responsible for all the User Content that you make available through the Site. Accordingly, you represent and warrant that: (1) you have all rights, licenses, consents, and releases necessary to grant Rachel Zoe the required rights to disseminate any User Content and (2) neither your User Content nor your posting, uploading, publication, submission or transmittal of this User Content or Rachel Zoe’s use of your uploaded User Content (or any portion thereof) on, through or by the means of the Site, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy or result in the violation of any applicable law or regulation.
6.5. No Obligations Regarding User Content. We will not have any obligation to hold any User Content in confidence or compensate you or anyone else for its use. We have the right to remove or edit any User Content for any reason or no reason at all.
7.1. Infringement Notification. Rachel Zoe respects the rights of others and we expect users of our Site and Services to do the same. These Terms prohibit the infringement of the copyrights of others, and it is also our policy that we may remove, suspend, terminate access of, or take other appropriate action against repeat offenders. We may also remove content that in our sole discretion appears to infringe the intellectual property rights of others.
7.2. How to File an Infringement Notification. If you have evidence, know, or have a good faith belief that content residing on or accessible through our Site infringes a copyright which you own or for which you are a designated agent, please send a notice of infringement by fax, electronic mail orregular mail to Rachel Zoe’s designated Copyright Agent to receive notifications of claimed infringement by one of the following means:
Rachel Zoe Copyright Agent
Pacific Design Center
Green Building, 8th Floor
700 N. San Vicente Blvd
Los Angeles, CA 90069
with the information that sets forth the items specified below:
Identify the copyrighted work claimed to have been infringed. If multiple copyrighted works are covered by a single notification, provide a representative list of such works.
Identify the material that is claimed to be infringing or to be the subject of infringing activity.
Include information reasonably sufficient to permit Rachel Zoe to locate the material. Please provide a URL and screenshots for each item. Include the specific asset(s) or page(s) that you claim to be infringing. Say “entire work” ONLY if all assets/pages in a collection/document are infringing.
Include details of your claim to the material, or your relationship to the material’s copyright holder.
Provide your full name, address, and telephone number should we need to clarify your claim.
Provide a working email address where we can contact you to confirm your claim.
If true, include the following statement: “I have a good faith belief that use of the copyrighted materials described above as the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.”
If true, include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the copyright owner to make this complaint.”
Sign the document, physically or electronically.
8. WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY; NOTICE TO NEW
8.1. NO WARRANTIES. THE SITE, SERVICES AND PRODUCTS ARE PROVIDED “AS AVAILABLE” AND “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. RACHEL ZOE DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS, IMPLIED AND
STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. RACHEL ZOE DOES NOT WARRANT THAT ANY PRODUCTS WILL BE IN STOCK, SAFE, DEFECT-FREE, CONFORM WITH WRITTEN OR ORAL SPECIFICATIONS, GUARANTEES, REPRESENTATIONS, WARRANTIES OR PROMISES, OR THAT PRODUCTS WILL NOT BE LOST OR DAMAGED
IN SHIPMENT. THIS PROVISION IS NOT INTENDED TO DISCLAIM LIABILITY THAT WE MAY NOT DISCLAIM UNDER APPLICABLE LAW.
8.2. USE OF SITE IS AT YOUR OWN RISK. RACHEL ZOE DOES NOT REPRESENT OR WARRANT THAT THE SITE, SERVICES OR EMAILS SENT TO YOU WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR THAT ALL INFORMATION WILL BE ACCURATE OR COMPLETE. YOU AGREE THAT YOUR USE OF THE SITE SHALL BE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF
DATA THAT RESULTS FROM THE DOWNLOAD OF MATERIAL OR DATA. RACHEL ZOE MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE THAT THE PRODUCTS, SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS. RACHEL ZOE WILL NOT BE RESPONSIBLE FOR ANY THIRD- PARTY CONTENT OR SERVICES ON THE SITE, ANY LINKS TO THIRD-PARTY WEBSITES
OR ANY THIRD-PARTY WEBSITES. PACKAGING, LABELS AND INSTRUCTIONS MAY CONTAIN MANUFACTURER DISCLAIMERS AND LIMITATIONS OF LIABILITY THAT APPLY TO THE PRODUCTS YOU PURCHASE. RACHEL ZOE MAKES ALL DISCLAIMERS IN THIS PARAGRAPH ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS.
8.3. NO RESPONSIBILITY FOR THIRD-PARTY MATERIALS. RACHEL ZOE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SITE, AND RACHEL ZOE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. RACHEL ZOE WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY
EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
8.4. NO CONSEQUENTIAL DAMAGES. IN NO EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WILL RACHEL ZOE, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY “RACHEL ZOE” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SITE, SERVICES OR PRODUCTS, EVEN IF RACHEL ZOE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. RACHEL ZOE WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE, OR LOSS OF GOOD WILL.
8.5. OUR LIABILITY IS LIMITED. IN ANY EVENT, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT(S) TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT, $99.99. THIS PROVISION IS NOT INTENDED TO EXCLUDE LIABILITY THAT RACHEL ZOE MAY NOT EXCLUDE UNDER APPLICABLE LAW.
8.6. NOTICE TO NEW JERSEY RESIDENTS. Your rights are protected under the Truth- in-Consumer Contract, Warranty and Notice Act and New Jersey law generally. The following provisions in these Terms do not apply to you and are not intended to vary, diminish or alter your rights under New Jersey law: specifically, nothing in these Terms limits, varies, diminishes, affects, or otherwise voids or alters your rights under New Jersey law as they relate to the following: limitations of liability or exculpation (such as limitations on indirect, incidental, special, exemplary, consequential or similar damages); dispute resolution; indemnification; venue or jurisdiction; statutes of limitation or repose periods for bringing claims; plain language requirements; and warranties. Your rights regarding these specific provisions will be governed by New Jersey law. In the event of any conflict between these Terms and New Jersey law, New Jersey law shall govern.
You agree to defend, indemnify and hold harmless Rachel Zoe, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including attorneys’ fees) incurred in connection with any third-party claim brought or asserted against any of the Indemnified Parties: (a) alleging
facts or circumstances that would, if true, constitute a violation of any provision of these Terms by you or (b) arising from or related to our use of your User Content in the context of the Services. You may not settle any such claim without our express written consent. This defense and indemnification obligation is intended to extend to the fullest extent permitted by applicable law and will survive these Terms and your use of the Site.
10. TERMINATION; SURVIVAL
10.1. Term. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion and without any liability, modify, suspend or discontinue any aspect of the Site, temporarily or permanently, at any time and without prior notice.
10.2. Modification and Termination of Site and Services. We may modify or terminate the Site or the Services, your access to the Services, in part or as a whole, at any time, for any or no reason, and without notice or liability to you.
10.3. Suspension or Termination. We may deny you access to all or part of the Site at any time for any reason (including if you violate these Terms, as determined in our sole and absolute discretion) or no reason at all. If we terminate for no reason your right to access the Site, we will fulfill our obligations to you related to any orders outstanding at the time of termination.
10.4. Effect of Termination. If you terminate your account, you will remain liable under these Terms for any purchase made prior to termination. If we terminate your right to access the Site, these Terms will terminate and all rights you have to access the Site will immediately terminate. The following provisions will survive termination: 1.3, 1.4, 2, 4.4, 4.5, 5 through 9, 10.4, 11, and 12.
You and Rachel Zoe agree that any dispute that has arisen or may arise between us relating in any way to your use of or access to the Services or Site, the Products, any breach, enforcement, or termination of these Terms, or otherwise relating to Rachel Zoe in any way (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth in this Section 11.
11.1. Informal Resolution. If you have any dispute with us, you agree that before taking any formal action, you will contact us at email@example.com, provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account) and allow sixty (60) days to pass, during which we will attempt to reach an amicable resolution of any
11.2. Applicable Law. United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of California, without regard to conflict of laws principles, will govern all Covered Matters.
11.3. Arbitration. By using the Sites, you agree that any dispute in any manner arising out of or relating in any way to these Terms, shall be submitted to binding arbitration with Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to JAMS’ arbitration rules, held before a single neutral arbitrator in the Los Angeles, California area. The parties to arbitration may use legal counsel at their own expense, and the prevailing party shall be entitled to its reasonable attorney’s fees. All costs of arbitration (including arbitrator fees) shall be paid by Rachel Zoe, except only if the arbitrator determines the claims are frivolous, or that if you bring the arbitration, you may be charged an initial filing fee that shall not exceed the filing fees that you would incur for bringing an action in court. Claims brought on behalf of or allegedly representing or including other persons or entities, including but not limited to any class, consolidated, representative, collective or private attorney general action, shall be a “Class Action.”
Notwithstanding anything else in these Terms or the JAMS rules, any parties subject to this arbitration provision shall be barred from bringing or participating in any Class Action related to a dispute covered by this arbitration provision. However, if these Class Action restriction are ever deemed illegal or unenforceable, they shall be severed from this arbitration provision. In that event,
any Class Action shall by exempted from this arbitration provision and brought in court. This arbitration provision is subject to the Federal Arbitration Act, and may be enforced in any court of competent jurisdiction.
11.4. Award. For matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section as to the types and the amounts of damages for which a party may be held liable. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Rachel Zoe 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. 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 USERS.
11.5. Exceptions. There are only two exceptions to this agreement to arbitrate:
(a) First, if either party reasonably believes that the other party has in any manner violated or threatened to infringe the intellectual property rights of the other party, the party whose rights have been violated may seek injunctive or other appropriate interim relief in any court of competent jurisdiction.
(b) Second, any claim of $500 or less may, at the option of the claiming party, be resolved in small claims court in Los Angeles County, California, if the claim and the parties are within the jurisdiction of the small claims court and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
11.6. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS’s rules, unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $5,000 or less, at your request, Rachel Zoe will reimburse you for all filing, administration, and arbitrator fees associated with the arbitration following the earlier of the arbitrator’s decision or settlement. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, Rachel Zoe is relieved of its obligation to reimburse you
for any fees associated with the arbitration.
11.7. Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in the Terms to the contrary, you and we agree that if we make any amendment to this agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Rachel Zoe prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and Rachel Zoe. If you do not agree to these amended terms, you may close your account within thirty (30) days of the posting or notification and you will not be bound by the amended terms.
11.8. Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate, as a result of a decision by the arbitrator or a court order or because you have chosen to file an eligible lawsuit in small claims court, you agree that any claim or dispute that has arisen or may arise between you and Rachel Zoe must be resolved exclusively by a state, federal, or small claims court located in Los Angeles County, California. You and Rachel Zoe agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
11.9. Opt-Out. IF YOU ARE A NEW RACHEL ZOE USER, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION (“OPT-OUT”) BY EMAILING US AN OPT- OUT NOTICE TO PRIVACY@CURATEUR.COM (“OPT-OUT NOTICE”) OR VIA US MAIL TO:
Rachel Zoe, Inc.,
Pacific Design Center
Green Building, 8th Floor
700 N. San Vicente Blvd
Los Angeles, CA 90069
THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS FOR THE FIRST TIME. IF YOU ARE NOT A NEW RACHEL ZOE USER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
11.10. Procedure. In order to opt-out, you must email your name, address (including street address, city, state, and zip code), and email address(es) associated with your Account(s) to which the opt-out applies and an unaltered digital image of a valid driver’s license which matches the name on your account to: firstname.lastname@example.org. 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 these Terms and this Disputes Section 11 will continue to apply to you. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
11.11. WAIVER. BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY
WAIVE ANY RIGHT YOU MAY HAVE TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.
11.12. STATUTE OF LIMITATIONS. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED. THIS PROVISION DOES NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.
12. GENERAL TERMS
12.1. Force Majeure. Under no circumstances shall Rachel Zoe or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
12.2. No Waiver; Severability. No waiver of any term of these Terms will be binding unless in writing, no waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and the failure of Rachel Zoe to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. The provisions of these Terms are intended to extend only to the fullest extent permitted by applicable law. If for any reason an arbitrator or a court
of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
12.3. Miscellaneous. These Terms (and all policies, terms and conditions referenced herein) constitute the entire agreement between you and Rachel Zoe and govern your use of the Site, Services and products provided by Rachel Zoe, and supersede any prior agreements between you and Rachel Zoe on the subject matters. You also may be subject to additional terms that may apply when you use certain Rachel Zoe services or third-party content, links or websites. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Rachel Zoe without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Rachel Zoe. A party’s failure or delay in exercising any right, power or privilege under these Terms will not waive its rights to exercise such right, power, or privilege in the future, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of such right, power, or privilege, or the exercise of any other right, power, or privilege under these Terms. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree to comply with all applicable laws in your use of the Site and Services. You agree that any
agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. “Include(s)” or “including” means, respectively, “include(s), without limitation,” or “including, without limitation,”, unless expressly stated otherwise. If you are using the Site or Services for or on behalf of the U.S. or any other government, your license rights do not exceed those granted to non-government consumers.
12.4. Use Outside the United States of America. The Site is controlled and offered by Rachel Zoe from the United States of America. Rachel Zoe makes no representations that the Site is appropriate for use in other locations. Those who access or use the Site from other locations do so at their own risk and are responsible for compliance with local law. You consent to the processing in the United States of America of information you provide to us.
12.5. Notices and Electronic Communications. You hereby consent to receiving and transacting with us by electronic means. We may deliver notice to you by e mail, posting a notice on the Site or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address:
13. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
- User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
- User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that CURATEUR and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
- Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of merchandise. Messages may include checkout reminders.
- Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
- Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
- MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
- Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
- Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
- Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
- Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Los Angeles, CA before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which CURATEUR’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration.
THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
- Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
- Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.