Terms of Use

Last Revised: 07/31/18

These Terms of Use (“Terms of Use”) govern your use of the website located at https://www.fashionphile.com/ (the “Website”), Fashionphile’s related mobile device application (the “App”), and any other related content, features, materials, applications, widgets and/or services (collectively the “Services”) offered by Fashionphile, LLC (“Fashionphile” or “we” or “us”).

BY USING THE SERVICES, YOU ACCEPT ALL OF THE PROVISIONS OF THESE TERMS OF USE (AND ANY ADDITIONAL TERMS INCORPORATED HEREIN) AND REPRESENT TO US THAT YOU ARE LEGALLY COMPETENT TO ENTER INTO AND AGREE TO THESE TERMS OF USE. IF YOU DO NOT ACCEPT THESE TERMS OF USE, THEN YOU ARE NOT AUTHORIZED TO USE ANY OF FASHIONPHILE’S SERVICES.

For purposes of these Terms of Use, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms of Use, and that you agree to these Terms of Use on the entity’s behalf, and (c) your entity is legally and financially responsible for your use of the Services as well as for the use of your account by others affiliated with your entity, including any employees, agents or contractors.

These Terms of Use describe your responsibilities, Fashionphile’s liability and the liability of third parties related to the Services. All users of the Services must accept and comply with the terms and conditions set forth herein. Certain portions of the Services may be subject to additional terms and conditions specified by us from time to time. Your use of the Services is subject to those additional terms and conditions. If you have any questions regarding these Terms of Use, please contact us via email at [email protected]

These Terms of Use include (I) AN ARBITRATION PROVISION, (II) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US, AND (III) a release by you of all claims for damage against us that may arise out of your use of the Services. By using any of THE SERVICES, you agree to THESE PROVISIONS.

  1. ABOUT THE SERVICES
    1. Overview. Fashionphile provides an online destination for buying and selling authentic, pre-owned luxury handbags and accessories.
    2. Privacy Policy. Our privacy practices in operating the Services are described in our Privacy Policy located at https://www.fashionphile.com/privacy/page (“Privacy Policy”). Please review the Privacy Policy to learn about:
      • what information we may collect about you;
      • what we use that information for;
      • what third party information, if any, you are agreeing to share by using the Services; and
      • with whom we share that information.
    3. Seller Terms and Conditions. Our terms and conditions governing your sale of goods on the Services are described in our Seller Terms and Conditions located at https://www.fashionphile.com/sell-your-bag/terms (“Seller Terms and Conditions”), which are incorporated herein by reference. Please review the Seller Terms and Conditions to learn about terms and conditions relating to:
      • authenticity of goods and cancellation of sales;
      • consignment fees, prices, and discounting;
      • contract terms for the sale of goods; and
      • payments for goods.
    4. Return Policy. Our terms and conditions governing your return of goods on the Services are described in our Return Policy located at https://www.fashionphile.com/returns/page (“Return Policy”), which are incorporated herein by reference. Please review the Return Policy to learn about terms and conditions relating to:
      • shipping of returns;
      • returns or cancellations of layaway purchases;
      • item condition and tag requirements for returns; and
      • payments for returns.
    5. Layaway Terms and Conditions. Our terms and conditions governing our layaway program on the Services are described in our Layaway Terms and Conditions located at https://www.fashionphile.com/layaway (“Layaway Terms and Conditions”), which are incorporated herein by reference. Please review the Layaway Terms and Conditions to learn about terms and conditions relating to:
      • down payments;
      • payments schedules and methods; and
      • cancellations and other policies.
  2. ACCOUNT REGISTRATION
    1. Registration. To register an account on the Services, you must be able to form legally binding contracts (for example, you cannot use the Services if you are under 18 years old or the age of legal majority in your jurisdiction).

      You do not need to create an account on the Services (a “User Account”) to use the public features of the Services, however, you do need a User Account to receive new item and discount alerts, use account balances towards purchases of goods, manage and make layaway payments, add items to your product wish list, and manage shipping and tracking information. You may create a User Account by completing the registration process set forth on the Website. You are responsible for providing and maintaining current your accurate contact information, which may include name, email address, shipping address, phone number, payment information, and other account information. Telephone calls and email correspondence with Fashionphile may be recorded or monitored.

    2. Authorized Users. You are the sole authorized user of your User Account. You are responsible for maintaining the confidentiality of any password and account name/number provided by you or Fashionphile for accessing the Services. You are solely and fully responsible for all activities that occur under your password or account. Fashionphile has no control over the use of your or any user’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will cease all use and contact Fashionphile immediately by emailing us at [email protected]
  3. TERMS APPLICABLE TO THE SERVICES
    1. License to Use Services. Subject to your compliance with these Terms of Use, Fashionphile hereby grants to you, a personal, nonexclusive, nontransferable, revocable, limited license (without the right to sublicense) to access and use the Services (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation) solely on computers and devices that you own or control, and subject to the limitations set forth below. These Terms of Use are limited to the intellectual property rights of Fashionphile and its affiliates and licensors and do not include any rights to other patents or intellectual property. We reserve any and all rights not expressly granted to you pursuant to these Terms of Use. The limited rights granted to you to access and use the Services comprise a limited license and do not constitute the sale of any software program.
    2. Use of the App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App or the Services. WE DO NOT GUARANTEE THAT THE APP OR THE SERVICES CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE OR WITH ANY PARTICULAR SERVICE PLAN. WE DO NOT GUARANTEE THAT THE APP OR THE SERVICES WILL BE AVAILABLE IN, OR THAT ORDERS FOR PRODUCTS CAN BE PLACED FROM, ANY PARTICULAR GEOGRAPHIC LOCATION. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside the App (“Push Messages”). You acknowledge that, when you use the App or the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App or the Services, including your receipt of Push Messages from Fashionphile. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE APP OR THE SERVICES ON YOUR MOBILE DEVICE, INCLUDING FOR YOUR RECEIPT OF PUSH MESSAGES FROM FASHIONPHILE.
    3. Mobile Software from the Apple App Store. The following terms and conditions apply to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of the Terms of Use are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms of Use are solely between you and Fashionphile, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and Fashionphile acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. You and Fashionphile acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Fashionphile, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You must comply with applicable third party terms of agreement when using the App. You and Fashionphile acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use as they relate to your license of the App, and that, upon your acceptance of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof.
    4. Use Restrictions. (a) You agree that: (i) you will not use the Services if you are not fully able and legally competent to agree to these Terms of Use, (ii) you will only use the Services for lawful purposes, (iii) you will not use the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct, (iv) you will not use the Services to advertise, solicit or transmit commercial advertisements, including “spam”, (v) you will not use the Services to cause nuisance, annoyance or inconvenience, (vi) you will not impair the proper operation of the network, (vii) you will not try to harm the Services in any way whatsoever, (viii) you will not copy, or distribute the Services or other content without written permission from Fashionphile, (ix) you will only use the Services for your own use and will not resell it to a third party, (x) you will keep secure and confidential your account password or any identification we provide you which allows access to the Services, and (xi) you will provide us with whatever proof of identity we may reasonably request.

      (b) You agree to protect the Services, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by Fashionphile. Except as specifically permitted herein or expressly authorized in writing by Fashionphile, you agree that you will not directly or indirectly: (i)distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity, (ii) use the Services in any service bureau arrangement, (iii)copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part thereof in any form or manner or by any means, (iv) harvest or scrape any content or data from the Services, or (v) permit any third party to engage in any of the acts described in clauses (i) through (iv).

      You further understand and agree that you are not permitted to: (w) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services, (x) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services), (y) use any means to discover the source code of any portion of the Services, or (z) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of Fashionphile and its licensors. If you breach these restrictions, you may be subject to prosecution and damages. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Fashionphile is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Services.

    5. User Content License Grant. As a condition of your use of the Services, you hereby grant to Fashionphile a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicenseable license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative work from any content that you upload, publish, submit or transmit to be made available through the Services (“Your Content”). By submitting Your Content through the Services, you represent and warrant (a) that you own or otherwise control all of the rights to Your Content, including without limitation, all copyrights, (b) that Your Content is accurate, and (c) that use of Your Content does not violate these Terms of Use or the Privacy Policy and will not cause injury to any person or entity. We take no responsibility and assume no liability for any content or materials submitted or posted through the Services by you or any third party. WE RESERVE THE RIGHT TO REMOVE ANY CONTENT, MATERIAL, OR SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE WEBSITE OR SERVICES.
    6. Third Party Services and Materials. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that Fashionphile is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. Fashionphile does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.

      Third party services and Third Party Materials that may be accessed from, displayed on or linked to from the Services are not available in all languages or in all countries. Fashionphile makes no representation that any third party services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.

  4. FEES AND PAYMENTS
    1. Payments. You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card, debit card, PayPal, or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice, to (a) discontinue or limit the available quantity of any product or aspect of the Services and (b) refuse to allow any user to purchase a product or deliver any product to a user.

      When you purchase products through the Services, you (a) agree to pay the price for such products set forth in the Services, all shipping and handling charges (if any), and all applicable taxes and customs fees in connection with your purchase (the “Full Purchase Amount”) and (b) authorize Fashionphile to charge your credit card or other payment method for the Full Purchase Amount. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.

      Payment can be made by credit card, debit card, through PayPal, with existing account balances, or other means that we may make available. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor are solely your responsibility.

    2. Changes to Products and Pricing. Fashionphile may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold or services offered through the Services. The inclusion of any products or services through the Services at a particular time does not imply or warrant that these products will be available at any other time. We reserve the right to change prices for products displayed on the Services, or the Services, at any time, and to correct pricing errors that may inadvertently occur. All such changes shall be effective immediately upon posting of such new product prices to the Services and/or upon making the customer aware of the pricing error.
    3. Shipment of Products. Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment. All orders are shipped using one of our third-party couriers. Online tracking may be available at our courier’s website (for example, UPS), though we make no warranties regarding its availability because it is not under our control. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific time.
    4. No Delivery to Children. In furtherance of our policy of not collecting personal information from persons under the age of 18, users are not allowed to give Fashionphile the personal information of any persons under the age of 18 for delivery or shipping purposes or any other reason.
  5. Disclaimer of Warranties & Limitation of Liability
    1. Disclaimer. YOU ARE SOLELY AND FULLY RESPONSIBLE FOR YOUR USE OF THE SERVICES, INCLUDING INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND FASHIONPHILE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. FASHIONPHILE DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (D) DEFECTS IN THE SERVICES WILL BE CORRECTED. ANY ORAL OR WRITTEN ADVICE PROVIDED BY FASHIONPHILE OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FASHIONPHILE OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
    2. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL FASHIONPHILE BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OF USE OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS OF USE AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF FASHIONPHILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. FASHIONPHILE’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU IN CONNECTION WITH EITHER THE PURCHASE OF GOODS VIA THE SERVICES OR FOR USE OR SALE OF GOODS VIA THE SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    3. Essential Terms. You agree that the above limitations of liability together with the other provisions in these Terms of Use that limit liability are essential terms of these Terms of Use and that Fashionphile would not be willing to grant you the rights set forth in these Terms of Use but for your agreement to the above limitations of liability. You are agreeing to these limitations of liability to induce Fashionphile to grant you the rights set forth in these Terms of Use.
    4. Indemnification. By entering into these Terms of Use and using the Services, you agree that you shall defend, indemnify and hold Fashionphile, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms of Use or any applicable law or regulation, (b) your violation of any rights of any third party, (c) any unauthorized use of the Services, or (d) your negligence or willful misconduct.
  6. Ownership
    1. Intellectual Property. The Services and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that Fashionphile and/or its licensors own all right, title and interest in and to the Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of Fashionphile’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms of Use. You acknowledge and agree that the features and functionality of the Services, and all software, content, data, information and materials contained therein are the confidential and proprietary information of Fashionphile (or its licensors), and accordingly you agree to (a) maintain the confidentiality of such information using reasonable efforts and care (but in no event less than the same efforts and care you use to protect your own confidential and proprietary information) and not disclose such information to any third party without the prior written consent of Fashionphile and (b) only use such information for the purposes of using the Services provided by Fashionphile hereunder.
    2. Feedback. Any and all (a) suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to Fashionphile by you (collectively “Feedback”) and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by Fashionphile or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of Fashionphile. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Fashionphile and Fashionphile may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Fashionphile any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At Fashionphile’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
  7. ARBITRATION AND CLASS ACTION WAIVER

    This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a Class Action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.

    1. Informal Process First. You agree that in the event of any dispute between you and Fashionphile, you will first contact Fashionphile and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
    2. Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Services and/or Fashionphile’s products, including the Services, or relating in any way to the communications between you and Fashionphile or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Fashionphile. However, this arbitration agreement does not (a) govern any Claim by Fashionphile for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms of Use or (b) bar you from making use of applicable small claims court procedures in appropriate cases.

      Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Fashionphile are each waiving the right to a trial by jury or to participate in a Class Action. This arbitration provision will survive any termination of these Terms of Use.

      If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to 6359 Paseo Del Lago, Carlsbad, CA 92011. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.

      The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Otherwise, the arbitration will be conducted in San Diego, CA. The arbitration will be conducted in the English language. California law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

      Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules, but if the applicable arbitration rules or laws require Fashionphile to pay a greater portion or all of such fees and costs in order for this Section VII.2 to be enforceable, then Fashionphile will have the right to elect to pay the fees and costs and proceed to arbitration or to decline to do so and have the matter resolved through the courts.

      The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.

      If you do not want to arbitrate disputes with Fashionphile and you are an individual, you may opt out of this arbitration agreement by sending an email to [email protected] within thirty (30) days of the first of the date you access or use the Services.

    Class Action Waiver

    Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.

    If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Fashionphile each waive any right to a jury trial.

  8. Gift Cards
    1. Generally. You may purchase one or more gift cards (each a “Gift Card”) via the Services on fashionphile.com. Gift Cards may only be redeemed toward the purchase of goods through the Services. Goods eligible for purchase using a Gift Card are subject to change at our sole discretion. If you use your Gift Card to make a purchase of goods through the Services and your purchase does not exhaust your Gift Card balance, then you may use the remaining balance for future purchases, subject to the restrictions set forth herein. If you use your Gift Card to make a purchase of goods through the Services that exceeds your Gift Card balance, you will have to use another payment method for the remainder of your purchase.

      Gift Cards cannot be used to purchase other Gift Cards, reloaded, resold, used for payment outside of the Services, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law).

    2. No Expiration; No Dormancy Fee. Gift Cards do not expire, and Fashionphile will not assess a service fee or dormancy fee with respect to a Gift Card.
    3. Risk of Loss. The risk of loss and title for Gift Cards pass to the purchaser upon our electronic transmission of the Gift Card to the purchaser or designated recipient. Gift Cards must be obtained from Fashionphile, and you are responsible for safeguarding your Gift Card from unauthorized use. Gift Cards that are lost, stolen, destroyed, or used without your permission are not replaceable.
    4. Compliance with Laws; Fraud. By purchasing a Gift Card, you represent and warrant to Fashionphile that use of the Gift Card will comply with these Terms of Use and all applicable laws, rules and regulations, and the Gift Card will not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers. Fashionphile may request alternative forms of payment if we believe a Gift Card has been fraudulently obtained.
  9. GENERAL PROVISIONS
    1. Modifications. We may modify these Terms of Use at any time. Modifications become effective immediately upon your first access to or use of the Services after the “Last Revised” date at the top of these Terms of Use. If we make changes that are material, we may use reasonable efforts to attempt to notify you, including by email or placing a prominent notice on the Website. However, it is your sole responsibility to review the Terms of Use from time to time to view any such changes. Your continued access or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms of Use. If you do not agree with the modifications to the Terms of Use, then please do not access or use the Services.
    2. Termination. If you breach any of the terms of these Terms of Use, all licenses granted by Fashionphile, including permission to use the Services, will terminate automatically. Additionally, Fashionphile may suspend, disable, or delete your User Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If Fashionphile deletes your User Account for any suspected breach of these Terms of Use by you, you are prohibited from re-registering for the Services under a different name. In the event of User Account deletion for any reason, Fashionphile may, but is not obligated to, delete any of Your Content. Fashionphile shall not be responsible for the deletion of (or failure to delete) Your Content. All sections which by their nature should survive the termination of these Terms of Use shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by Fashionphile or you. Termination will not limit any of Fashionphile’s other rights or remedies at law or in equity.
    3. Export Laws. You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by Fashionphile hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
    4. U.S. Government Restricted Rights. The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
    5. Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms of Use by any authority.
    6. Injunctive Relief. You agree that a breach of these Terms of Use will cause irreparable injury to Fashionphile for which monetary damages would not be an adequate remedy and Fashionphile shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
    7. Miscellaneous. These Terms of Use will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms of Use and the licenses granted hereunder may be assigned by Fashionphile but may not be assigned by you without the prior express written consent of Fashionphile. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms of Use will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms of Use due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of the Terms of Use but are for convenience only. You and Fashionphile agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms of Use. The AAA Rules and the laws of the state of California, excluding its conflicts of law rules, govern these Terms of Use and your use of the Services. Your use of the Services may also be subject to other local, state, national, or international laws.

      Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

    8. Contact Us. You may contact us regarding the Services or these Terms of Use at: 6359 Paseo Del Lago, Carlsbad, CA, 92011 or by email at [email protected] These Terms of Use sets forth the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.

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