Effective Date: November 24th 2024
These Terms of Use (“Terms”)
apply to your access to and use of the website http://www.LuckyBrand.com (the “Site”),
provided by Lucky OpCo LLC and its subsidiaries and affiliates (collectively, “Lucky
Brand,” “we,” or “us”). These Terms constitute a legally
binding agreement by and between Lucky Brand and the User of this Site
(personally, and if applicable, on behalf of the entity for whom you are using
the Site; collectively “you”). To the extent permitted by
applicable law, by accessing and using any of the Site, you agree to these
Terms, all policies within the Site, and all changes or modifications to the foregoing.
ARBITRATION NOTICE: NOTE THAT THESE TERMS CONTAIN A
MANDATORY ARBITRATION PROVISION AND CLASS-ACTION WAIVER, WHICH REQUIRES YOU AND
LUCKY BRAND TO RESOLVE MOST DISPUTES AND CLAIMS BY BINDING, INDIVIDUAL
ARBITRATION AND NOT BY MEANS OF A CLASS ARBITRATION, A CLASS ACTION, ANY OTHER
KIND OF REPRESENTATIVE PROCEEDING, OR A JURY TRIAL.
1.
PRIVACY
We collect and process information
about you when you access and use our Site. For more details about our
information practices, please see our Privacy
Policy.
2.
SITE CONTENT
Unless otherwise noted,
the Site, and all features and materials on the Site, including text, images,
illustrations, designs, icons, photographs, video clips and other content, and
the copyrights, trademarks, patents, trade dress and/or other intellectual
property in such materials (collectively, the “Contents”), are owned,
controlled or licensed by Lucky Brand and/or its licensors.
The Site and the Contents
are intended solely for personal, non-commercial use. You may download or copy
the Contents and other downloadable materials displayed on the Site for your
personal and non-commercial use only, provided you do not modify or delete any
copyright, trademark or other proprietary notice that appears on the material
you access, copy, download or print. No right, title or interest in any
downloaded Content is transferred to you as a result of any such downloading or
copying.
You may not reproduce
(except as noted below), publish, transmit, distribute, display, modify, create
derivative works from, sell or exploit in any way any of the Contents or the
Site.
You are granted a limited, non-sublicensable right to access the Site and print the Contents for your personal, non-commercial, and informational use only. The foregoing license grant does not include the right for you to:
- Publish, publicly perform or display, or distribute to any third party any Contents, including reproduction on any computer network or broadcast or publications media;
-
Market, sell or make commercial use of the Site or any
Contents;
-
Systematically collect and use any data or content, including the
use of any data spiders, robots, or similar data gathering, mining or
extraction methods;
-
Make derivative uses of the Site or the Contents; or
-
Use, frame or utilize framing techniques to enclose any portion of
the Site (including the images found at the Site or any text or the
layout/design of any page or form contained on a page).
Except for the limited license granted
to you, you are not conveyed any other right or license by implication,
estoppel, or otherwise in or under any patent, trademark, copyright, or
proprietary right of Lucky Brand or any third party. Any unauthorized use of
the Site will terminate the permission or license granted by these Terms and
may violate applicable law, including copyright laws, trademark laws (including
trade dress), patent laws and communications regulations and
statutes.
Any other use of the Contents on the
Site, including but not limited to the modification, distribution,
transmission, performance, broadcast, publication, uploading, licensing,
reverse engineering, transfer or sale of, or the creation of derivative works from,
any material, information, software, products or services obtained from the
Site, or use of the Site for purposes competitive to Lucky Brand, is expressly
prohibited. Lucky Brand reserves the right in its sole discretion to refuse or
cancel any person's registration for this Site, remove any person from this
Site or prohibit any person from accessing or using this Site for any reason
whatsoever and without notice. Lucky Brand or its content providers retain full
and complete title to the material provided on the Site, including all
associated intellectual property rights, and provide this material to you under
a license that is revocable at any time in Lucky Brand’s sole discretion. Lucky
Brand neither warrants nor represents that your use of materials on this Site
will not infringe rights of third parties not affiliated with Lucky Brand.
You may not use contact information
provided on the Site for unauthorized purposes, including marketing. You may
not use any hardware or software intended to damage or interfere with the
proper working of the Site or to surreptitiously intercept any system, data or
personal information from the Site. You agree not to interrupt or attempt to
interrupt the operation of the Site in any way. If you are terminated from using
this Site, you will be personally liable for any orders that you place or
charges or other liabilities that you incur prior to termination. Termination
of your access or use will not waive or affect any other right or relief to
which Lucky Brand may be entitled, at law or in equity.
Unless otherwise specified, the Site
and the Contents are intended to promote Lucky Brand’s products and services
available in the United States. The Site is controlled and operated by Lucky
Brand from its offices in Lyndhurst, New Jersey and New York, New York. One or
more patents may apply to the Site. Lucky Brand does not imply that the
materials published on the Site are appropriate for use outside of the United
States. If you access the Site from outside of the United States, you do so on
your own initiative and you are responsible for compliance with local laws. If
any material on this Site, or your use of the Site, is contrary to the laws of
the place where you are when you access it, the Site is not intended for you,
and we ask you not to use the Site.
3. TRADEMARKS
This Site and all content on this
Site, including but not limited to text, design, graphics, logos, button icons,
images, audio clips, digital downloads, and data compilations, is the exclusive
property of Lucky Brand, its licensor, or its content suppliers and is
protected by United States and international copyright laws. In addition, all
trademarks, logos and service marks displayed on this Site are registered and
unregistered trademarks and property of Lucky Brand’s licensor. Nothing on this
Site shall be construed as granting, by implication, estoppel, or otherwise,
any license or right to use any trademark, logo or service mark displayed on
the Site without our prior written permission, except as otherwise described
herein. Lucky Brand reserves all rights not expressly granted in and to the
Site and its content.
4.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Lucky Brand respects the intellectual
property of others. If you are a copyright owner and believe that your works
has been copied in a way that constitutes copyright infringement, please
contact us at 125 Chubb Avenue, 5 Fl, Lyndhurst, New Jersey, 07071, Attn: Legal
Department. Your correspondence should include the following information so
that we may investigate your claim in writing:
· A physical or electronic signature of a person authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed;
· A description where the material that you claim is infringing is located
on the Site;
· Your mailing address, telephone number, and email address;
· A statement by you that you have a good-faith belief that the disputed
use is not authorized by the copyright owner, its agent, or the law;
· A statement by you, made under penalty of perjury, that the above information
in your notice is accurate and that you are the copyright owner or authorized
person to act on the copyrights owner’s behalf.
For notice of claims of copyright
infringement on the Site, Lucky Brand can be reached at [email protected]. For
clarity, only Digital Millennium Copyright Act (“DMCA”) notices should
go to the Copyright Agent. You acknowledge that if you fail to comply with all
of the requirements of this section, your DMCA notice may not be valid.
Notification that fails to comply with the foregoing will not constitute
knowledge or awareness of infringement. We suggest that you consult your legal
counsel before filing a claim.
Please note that this procedure is
exclusively for notifying Lucky Brand and its parents and affiliates that your
copyrighted material has been infringed.
5.
AGE RESTRICTIONS
Our Services are not designed for children under the age of 16. By using
the Site, you are representing to us that you are 16 years old or older.
The Site will not be liable for any damages that may result from
misrepresentation of age by a user of our Site. If you are a parent or legal
guardian and you believe that a child has provided personal information to us
without your consent, please contact us at [email protected].
6.
ACCOUNT AND BILLING INFORMATION
Some features that may be available on this Site require registration or
use of a password. You are responsible for maintaining the confidentiality of
your account and password and for restricting access to your computer and you
agree to accept responsibility for any and all statements made, and all acts
and omissions that occur through the use of your account or password. If
you have any reason to believe or become aware of any loss, theft or
unauthorized use of your password, notify Lucky Brand immediately at [email protected]. Lucky Brand may assume that any communications
we receive under your password have been made by you unless we receive
notice.
You agree to provide
current, complete and accurate purchase and account information for all
purchases made on this Site. You agree to promptly update your account and
other information, including your email address and debit or credit card
numbers.
7.
SITE TRANSACTIONS
We reserve the right
to refuse any order you place with us. We may, in our sole discretion, limit or
cancel quantities purchased per person, per household or per order. These
restrictions may include orders placed by or under the same customer account,
the same credit card, and/or orders that use the same billing and/or shipping
address. In the event we make a change to or cancel an order, we will attempt
to notify you by contacting the email and/or billing address/phone number
provided at the time the order was submitted. We reserve the right to limit or
prohibit orders that, in our sole judgment, appear to be placed by dealers,
resellers, or distributors.
The information on
this Site does not constitute a binding offer to sell products described on the
Site or to make such products available in your area. We reserve the right at
any time after our receipt of your order to accept or decline your order, or
any portion thereof, in our sole discretion, even after your receipt of an
order confirmation or after your credit card has been charged. You may not
purchase any item from this Site for resale by you or any other person, and you
may not resell any item purchased from this Site. The prices displayed on the
Site are quoted in U.S. dollars and are intended to be valid and effective only
in the United States. In the event a product is listed at an incorrect price,
we have the right to refuse or cancel orders placed for the product listed at
the incorrect price, regardless of whether the order has been confirmed or your
credit card has been charged. If your credit card has already been charged for
the purchase and your order is canceled, we will issue a credit to your credit
card account.
8.
PRODUCT AVAILABILITY
Many of the products
displayed on the Site are also available at our retail stores in the United
States. Extended sizes that are available online may not be available in retail
stores. Certain products are available exclusively online through the
Site. These products may have limited quantities and are subject to return or
exchange only through the Site, subject to the applicable return policy.
9.
CONTENT YOU SUBMIT
Lucky Brand welcomes
your comments and feedback regarding our products and services. If you post
comments, photos, reviews or other content on the Site, or you send creative
ideas, suggestions, customer reviews, photographs, proposals, plans, or other
materials, whether online, by email, by postal mail, or otherwise
(collectively, “Comments”) without a request from us, you grant Lucky
Brand and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable
and fully sublicensable right to use, reproduce, modify, adapt, publish,
translate, create derivative works from, distribute and display such material
throughout the world in any media, without restriction, at any time, as
permitted by applicable law When you post or share Comments with Lucky Brand on
the Site, by email, postal mail, or otherwise, you understand that your
Comments and any associated information (such as your username) may be visible
to others. All communications and Comments submitted to the Site are
non-confidential and non-proprietary. If you choose to make any of your
information publicly available through the Site, you do so at your own risk.
You grant Lucky Brand and its affiliates the right to use the name you submit
in connection with such material, if they so choose. If you do not wish to
grant Lucky Brand the permission set forth above, please do not submit
Comments.
Lucky Brand is and
shall be under no obligation (1) to maintain Comments in confidence; (2) to pay
compensation for Comments; or (3) to respond to Comments. We have the right but
not the obligation to monitor and edit or remove any Comments from the Site in
our sole discretion at any time. You may not repost, republish, or redistribute
Comments outside of the Site.
You acknowledge that
you are responsible for any material you may submit via the Site, including the
legality, reliability, appropriateness and originality of any such material.
You represent and warrant that you own or otherwise control all the rights to
the content you post; that the content is accurate; that use of the content you
supply does not violate any provision herein and will not cause injury to any
person or entity; and that you will indemnify Lucky Brand for all claims
resulting from content you submit. You may not upload to, distribute or
otherwise publish through this Site any content that (i) is false, fraudulent,
libelous, defamatory, obscene, threatening, invasive of privacy or publicity
rights, infringing on intellectual property rights, abusive, illegal or
otherwise objectionable; (ii) may constitute or encourage a criminal offense,
violate the rights of any party or otherwise give rise to liability or violate
any law; or (iii) may contain software viruses, political campaigning, chain
letters, mass mailings, or any form of spam. You may not use a false email
address or other identifying information, impersonate any person or entity or otherwise
mislead as to the origin of any content. You may not upload commercial content
onto the Site. Lucky Brand takes no responsibility and assumes no liability for
Comments or any other content posted by you or any third party.
While we value your feedback, we are
unable to accept or consider any creative ideas, suggestions, proposals, plans,
or other materials submitted by you (collectively, “Proposals”) other
than those we have specifically requested. The intent of this policy is to
avoid the possibility of future misunderstandings when projects developed by Lucky
Brand’s employees and agents might seem to be similar to Proposals.
Accordingly, we ask that you not send Proposals to anyone at Lucky Brand
through any communication channel.
10.
EMAIL COMMUNICATIONS
When you make a
purchase on the Site, or send e-mails to us, you are communicating with us
electronically. By use of the Site, you consent to receive communications from
us electronically. We will communicate with you by e-mail or by posting notices
on this Site. You agree that all agreements, notices, disclosures and other
communications that we provide to you electronically satisfy any legal
requirement that such communications be in writing.
11. DISPUTE RESOLUTION; BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND LUCKY
BRAND TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH
YOU AND LUCKY BRAND CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU
AND LUCKY BRAND FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND LUCKY BRAND
AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS
ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. LUCKY
BRAND AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
THE PARTIES TO THESE TERMS ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE
INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR
DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY’S
CLAIMS.
FOLLOW THE INSTRUCTIONS BELOW, IN SECTION (K), IF YOU WISH TO OPT OUT OF
THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
a. Claims To Which This Section Applies. The dispute
resolution and binding arbitration terms in this section apply to all Claims
between you and Lucky Brand. A “Claim” is any dispute, claim, or
controversy (excluding those exceptions listed below) between you and Lucky
Brand, whether based in contract, tort, statute, fraud, misrepresentation, or
any other legal theory, that either party wishes to seek legal recourse for and
that arises from or relates to these Terms or Lucky Brand products or services,
including any privacy or data-security claims or claims related to the
validity, enforceability, or scope of the arbitration requirement or any
portion of it. These Terms, however, do not prevent you from bringing a Claim
to the attention of any government agency.
b. Informal Dispute
Resolution Prior to Arbitration. If you have a Claim against Lucky
Brand or if Lucky Brand has a Claim against you, you and Lucky Brand will first
attempt to resolve the Claim informally for faster resolution and to reduce costs
for both parties. You and Lucky Brand
will make good-faith effort to negotiate the resolution of any Claim for 60
days, or such longer period as mutually agreed in writing (email suffices) by
the parties, (“Informal Resolution Period”) from the day either party
receives a written notice of a dispute from the other party (a “Claimant
Notice”) in accordance with these Terms.
You will send any
Claimant Notice to Lucky Brand by overnight mail addressed to 125 Chubb Avenue,
5 Fl, Lyndhurst, New Jersey, 07071, Attn: Legal Department or by email to [email protected]. Lucky
Brand will send any Claimant Notice to you by overnight mail or email using the
contact information you have provided to Lucky Brand. The Claimant Notice sent
by either party must include (i) the sender’s name, address, email address, and
telephone number; (ii) describe the nature and basis of the Claim;
(iii) set forth the specific relief sought;
and (iv) if an item is at issue, the item(s) purchased and date and
location of such purchase.
The Informal
Resolution Period is designed to allow the party who has received a Claimant
Notice to make a fair, fact-based offer of settlement if it chooses to do
so.
You or Lucky Brand can file a Claim in
arbitration only after the end of the Informal Resolution Period. You or Lucky
Brand cannot proceed to arbitration before the end of the Informal Resolution
Period. If you or Lucky Brand file a Claim in court or proceed to arbitration without
complying with the requirements in this section, including waiting until the
conclusion of the Informal Resolution Period, the other party reserves the
right to seek relief from a court to enjoin the filing and seek damages from
the party that has not followed the requirements in this section to reimburse
it for any arbitration fees and costs already incurred as a foreseeable
consequence of that breach.
The statute of limitations and any
filing fee deadlines for a Claim will be tolled for the duration of the
Informal Resolution Period for that Claim so that the parties can engage in
this informal dispute-resolution process.
c. Claims Subject to Binding Arbitration;
Exceptions. Except for individual disputes that qualify for small claims court (provided
that the small-claims court does not permit class or similar representative
actions or relief) and any disputes exclusively related to the intellectual
property or intellectual-property rights of you or Lucky Brand, including any
disputes in which you or Lucky Brand seek injunctive or other equitable relief
for the alleged unlawful use of your or Lucky Brand’s intellectual property or
other infringement of your or Lucky Brand’s intellectual property rights (“IP
Claims”), all Claims, including Claims that are not related to intellectual
property or intellectual-property rights but are jointly filed with IP Claims,
that are not resolved in accordance with section(b) will be resolved by a
neutral arbitrator through final and binding arbitration instead of in a court
by a judge or jury. Such Claims include, without limitation, disputes arising
out of or relating to interpretation or application of this arbitration
provision, including the enforceability, revocability, or validity of the
arbitration provision or any portion of the arbitration provision. The
arbitrator will have the authority to grant any remedy or relief that would
otherwise be available in court.
d. Binding Individual
Arbitration. Subject to the terms of this section, Claims may only be settled by
binding individual arbitration conducted by the American Arbitration
Association (the “AAA”), https://adr.org/, according to the Federal Arbitration
Act, 9 U.S.C. § 1, et seq., (“FAA”). For Claims arbitrated by the AAA,
if you are a “Consumer,” the then-current version of the AAA’s Consumer
Arbitration Rules are the rules applicable to Claims between you and Lucky
Brand as modified by these Terms (the “Rules”). For Claims arbitrated by
the AAA, if you are not a Consumer, the then-current version of the AAA’s
Commercial Arbitration Rules and Mediation Procedures are the Rules applicable
to Claims between you and Lucky Brand as modified by these Terms. The Rules are
available at www.adr.org or by calling 1-
800-778-7879.
These Terms affect interstate
commerce, and the enforceability of this section will be substantively and
procedurally governed by the FAA to the extent permitted by law. As limited by
the FAA, these Terms, and the Rules, the arbitrator will have exclusive
authority to make all procedural and substantive decisions regarding any Claim
and to grant any remedy that would otherwise be available in court, including
the power to determine the question of arbitrability. To the fullest extent
allowed by applicable law, the arbitrator may only award legal or equitable
remedies that are individual to you or Lucky Brand to satisfy one of our
individual Claims (that the arbitrator determines are supported by credible
relevant evidence). To the extent that you prevail on a Claim and seek public
injunctive relief (that is, injunctive relief whose primary purpose and effect
is to prohibit and enjoin conduct harmful to the general public), the
entitlement to and extent of such relief must be litigated in a civil court of
competent jurisdiction and not in arbitration. The parties agree that
litigation of any issues of public injunctive relief shall be stayed pending the
outcome of the merits of any individual Claims in arbitration.
e.
Arbitration Procedure and Location. You or Lucky Brand
may initiate arbitration of any Claim not resolved during the Informal
Resolution Period and not excluded under this section(c) by filing a demand for
arbitration with AAA in accordance with the Rules. Instructions for filing a
demand for with AAA are available on the AAA website. You will send a copy of
any demand for arbitration to Lucky Brand by overnight mail addressed to 125
Chubb Avenue, 5 Fl, Lyndhurst, New Jersey, 07071, Attn: Legal Department or by
email to [email protected].
Lucky Brand will send any
demand for arbitration to you by overnight mail or email using the contact
information you have provided to Lucky Brand.
The arbitration will be conducted by a
single arbitrator in the English language. You and Lucky Brand both agree that
the arbitrator will be bound by these Terms.
For Claims in which the claimant seeks
less than USD $10,000, the arbitrator will decide the matter solely based on
written submissions, without a formal hearing, unless the arbitrator decides
that a formal hearing is necessary. For Claims in which the claimant seeks USD
$10,000 or more, or smaller matters in which the arbitrator determines a
hearing to be necessary, hearings will be conducted by video or telephone,
unless the arbitrator determines an in-person hearing to be necessary. If an
in-person hearing is required and you reside in the United States, the hearing
will take place in New York, New York unless you are a Consumer and the
arbitrator determines that this would pose a hardship for you, in which case
the in-person hearing may be conducted in the claimant’s state and county of
residence. If you reside outside the United States, the site of any in-person
hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury)
will resolve all Claims in arbitration. Unless you and Lucky Brand agree
otherwise, any decision or award will include a written statement stating the
decision of each Claim and the basis for the award, including the arbitrator’s
essential factual and legal findings and conclusions.
An arbitration award, and any judgment
confirming it, apply only to that specific case; it cannot be used or offered
as precedent in any other case except to enforce the award itself unless the
parties agree prior to issuance of the award. Any arbitration decision or award
may be enforced as a final judgment by any court of competent jurisdiction or,
if applicable, application may be made to such court for judicial confirmation
of any award and an order of enforcement.
f.
Arbitration Fees. Each party will be
responsible for arbitration fees in accordance with the applicable Rules and
these Terms.
g.
Frivolous or Improper Claims. To the extent
permitted by applicable law, a claimant must pay all costs incurred by the
responding party, including any attorney fees, related to a Claim if an
arbitrator determines that (i) the Claim was frivolous or (ii) the Claim was
filed in arbitration for any improper purpose, such as to harass the defending
party, cause unnecessary delay, or needlessly increase the cost of dispute
resolution.
h. Confidentiality. If you or Lucky
Brand serve a Claimant Notice or submit a Claim to arbitration, you and Lucky
Brand agree to cooperate to seek protection (from the arbitrator or otherwise)
for any confidential, proprietary, trade-secret, or otherwise sensitive
information, documents, testimony, and other materials that might be exchanged
or the subject of any discovery. You and Lucky Brand agree to seek such
protection before any such information, documents, testimony, or materials are
exchanged or otherwise become the subject of discovery.
i.
One Year to Assert Claims. To the extent
permitted by law, any Claim by you or Lucky Brand against the other must be
filed within one year after such Claim arises; otherwise, the Claim is
permanently barred, which means that you or Lucky Brand will no longer have the
right to assert that Claim.
j.
Mass Arbitrations. If 25 or more Claimant
Notices are received by a party that raise similar claims and have the same or
coordinated counsel, these will be considered “Mass Arbitrations” and
will be treated as mass arbitrations according to the AAA’s Mass Arbitration
Supplementary Rules, if and to the extent Mass Arbitrations are filed in
arbitration as set forth in these Terms. You or Lucky Brand may advise the
other of your or Lucky Brand’s belief that Claims are Mass Arbitrations, and
disputes over whether a Claim meets the definition of “Mass Arbitrations” will
be decided by the arbitration provider as an administrative matter. To the
extent either party is asserting the same Claim as other persons and are
represented by common or coordinated counsel, that party waives any objection that
the joinder of all such persons is impracticable. The following procedures are
intended to supplement the AAA’s Mass Arbitration Supplementary Rules, and to
the extent the procedures conflict with those Rules, to supersede them.
Mass Arbitrations may only be filed in
arbitration as permitted by the process set forth below. Applicable statutes of
limitations will be tolled for Claims asserted in Mass Arbitrations from the
time a compliant Claimant Notice has been received by a party until these Terms
permits such Mass Arbitration to be filed in arbitration or court.
Initial Bellwether: The bellwether
process set forth in this section will not proceed until counsel representing
the Mass Arbitrations has advised the other party in writing (email suffices)
that all or substantially all the Claimant Notices for the Mass Arbitrations
have been submitted.
After that point, counsel for the
parties will select 20 Mass Arbitrations to proceed in arbitration as a
bellwether to allow each side to test the merits of its arguments. Each side
will select 10 claimants who have provided compliant Claimant Notices for this
purpose, and only those chosen cases may be filed with the arbitration
provider. The parties acknowledge that resolution of some Mass Arbitrations
will be delayed by this bellwether process. Any remaining Mass Arbitrations
shall not be filed or deemed filed in arbitration, nor shall any arbitration
fees be assessed in connection with those Claims, unless and until they are
selected to be filed in individual arbitration proceedings as set out in this
section.
A single arbitrator will preside over
each Mass Arbitration chosen for a bellwether proceeding, and only one Mass
Arbitration may be assigned to each arbitrator as part of a bellwether process
unless the parties agree otherwise. Each Mass Arbitration chosen for a
bellwether will otherwise be subject to the terms of this section generally
applicable to Claims filed in arbitration.
Mediation: Once the
arbitrations that are part of the bellwether process have concluded (or sooner
if the claimants and the other party agree), counsel for the parties must
engage in a single mediation of all remaining Mass Arbitrations, with the
mediator’s fee paid for by Lucky Brand. Counsel for the claimants and the other
party must agree on a mediator within 30 days after the conclusion of the last
bellwether arbitration. If counsel for the claimants and the other party cannot
agree on a mediator within 30 days, the arbitration provider will appoint a mediator
as an administrative matter. All parties will cooperate for the purpose of
ensuring that the mediation is scheduled as quickly as practicable after the
mediator is appointed.
Remaining Claims: If the mediation
process concludes with 100 or more unresolved Mass Arbitrations remaining, any
party to a remaining Mass Arbitration may elect to no longer have the
arbitration requirement in this section apply to all remaining Mass
Arbitrations for which a compliant Claimant Notice was received by the other party
but that were not resolved in the bellwether process or global mediation. To be
effective, such an election must be communicated in writing (email suffices) to
counsel for the opposing party (or to the opposing party if they do not have
counsel) within 30 days of mediation concluding. Mass Arbitrations released
from the arbitration requirement must be resolved in accordance with the
Governing Law and Venue section of these Terms.
If the mediation process concludes
with fewer than 100 Mass Arbitrations remaining or if no party makes a timely
election as provided for in the previous paragraph, the AAA will randomly
select 50 Mass Arbitrations (or the total remaining amount if less than 50) to
proceed in arbitration as a second batch. The AAA will randomly select eligible
claimants who have provided compliant Claimant Notices for this purpose, and
only those chosen cases may be filed with the arbitration provider. A single
arbitrator will preside over each Mass Arbitration chosen for this second
batch, and only one Mass Arbitration may be assigned to each arbitrator as part
of this second batch unless the parties agree otherwise. Once all arbitrations
in the foregoing process are complete, the parties will repeat this process
until all Mass Arbitrations have been arbitrated. Each Mass Arbitration chosen
for a batch will otherwise be subject to the terms of this section generally
applicable to Claims filed in arbitration.
If Mass Arbitrations released from the
arbitration requirement are brought in court, claimants may seek class
treatment, but to the fullest extent allowed by applicable law, the classes
sought may comprise only the claimants in Mass Arbitrations for which a
compliant Claimant Notice was received by the other party. Any party may contest
class certification at any stage of the litigation and on any available
basis.
A court will have authority to enforce
the bellwether and mediation processes defined in this section and may enjoin
the filing of lawsuits or arbitration demands not made in compliance with
it.
k.
Opting Out of Arbitration. You have the right
to opt out of binding arbitration within 30 days of the date you first accepted
these Terms by emailing [email protected].
To be effective, the opt-out notice
must be received by us within the 30-day period and must include your full
name, mailing address, and email address. The notice must also clearly indicate
your intent to opt out of binding arbitration to be valid. By opting out of
binding arbitration, you are agreeing to resolve disputes in accordance with
the Governing Law and Venue section of these Terms.
l. Rejection of Future Arbitration Changes. You may reject any
change we make to this section (except address changes) by sending us notice of
your rejection within 30 days of the change via email at [email protected]. To
be effective, your rejection must be received by us within the 30-day period
and must include your full name, mailing address, and email address and clearly
indicate your intent to reject changes. Changes to this section may only be
rejected as a whole, and you may not reject only certain changes to this
section. If you reject changes made to this section, the most recent version of
this section that you have not rejected will continue to apply.
m.
Severability. If any portion of
this section is found to be unenforceable or unlawful for any reason, including
but not limited to because it is found to be unconscionable, (i) the
unenforceable or unlawful provision will be severed from these Terms; (ii)
severance of the unenforceable or unlawful provision will have no impact
whatsoever on the remainder of this section or the parties’ ability to compel
arbitration of any remaining claims on an individual basis pursuant to this
section; and (iii) to the extent that any claims must therefore proceed on a
class, collective, consolidated, or representative basis, such claims must be
litigated in a civil court of competent jurisdiction, in accordance with these
Terms, and not in arbitration. The litigation of those claims will be stayed
pending the outcome of any individual claims in arbitration. Further, if any
part of this section is found to prohibit an individual claim seeking public
injunctive relief, that provision will have no effect to the extent such relief
is allowed to be sought out of arbitration, and the remainder of this section
will be enforceable.
12.
GOVERNING LAW AND VENUE
These Terms and any
Claim will be governed by and construed and enforced in accordance with the
laws of New York, New York, except to the extent preempted by U.S. federal law,
without regard to conflict of law rules or principles (whether of New York or any
other jurisdiction) that would cause the application of the laws of any other
jurisdiction. Any Claim that is not subject to arbitration or cannot be heard
in small claims court will be resolved exclusively in the state or federal
courts of New York and the United States, respectively, sitting in New York,
New York. You and Lucky Brand waive any objection to venue in any such courts.
13.
ERRORS, INACCURACIES, AND OMISSIONS
We have made every
effort to display as accurately as possible the colors and styles of our
products that appear on the Site. Please note that because the colors you see
will depend on your device’s display settings, we cannot guarantee that your
device will display the exact color of an item displayed.
Though we strive for
accuracy, occasionally, the information on the Site may contain typographical
errors, inaccuracies, or omissions in relation to product descriptions, pricing
and availability. We apologize for such oversights. We reserve the right to
correct any errors, inaccuracies or omissions and to change or update
information at any time without prior notice (including after you have
submitted an order). In the event of a pricing error on an item you have
ordered, we will notify you and await your approval of the corrected price
before continuing with your order. We hope this will not cause you
inconvenience.
Due to special
promotions and sales, items in your shopping cart may have a different price
from the price displayed on the product page when it was first placed in your
cart.
14.
LINKS TO OTHER SITES
Periodically, links
may be established from the Site to one or more external sites or resources
operated by third parties (“Third-Party Sites”). These links are provided for
your convenience only and the inclusion of any link does not imply affiliation,
endorsement, or adoption by us of the Third-Party Sites or any information
contained therein. In addition, some Third-Party Sites also may provide links
to the Site. Such links should not be deemed to imply that Lucky Brand endorses
the Third-Party Sites or any content therein. Lucky Brand does not control and
is not responsible or liable for any Third-Party Sites or any content,
advertising, products, or other materials on or available from such Third-Party
Sites. When leaving the Site and entering a new site, you should be aware that
our terms and policies no longer govern. If you use the links, you will leave
the Site and your activities may be governed by other terms and conditions and
privacy practices.
15.
INDEMNIFICATION
To the extent
permissible by law, you agree to defend, indemnify and hold Lucky Brand and its
affiliates and their respective officers, directors or employees harmless from
and against any and all claims, damages, costs and expenses, including
attorneys’ fees arising out of or related to (a) your access to or use of the
Site; (b) your violation of these Terms; (c) your violation, misappropriation,
or infringement of any rights of another (including intellectual property
rights or privacy rights); (d) your conduct in connection with this Site; (e)
and/or your breach of any representation, warranty, or other provision of the
agreement between us.
If you cause a
technical disruption of the Site or the systems transmitting the Site to you or
others, you agree to be responsible for any and all losses, liabilities,
expenses, damages and costs, including reasonable attorneys’ fees and court
costs, arising or resulting from that disruption. Lucky Brand reserves the
right, at its own expense, to assume exclusive defense and control of any
matter otherwise subject to indemnification by you and, in such case, you agree
to cooperate with Lucky Brand in the defense of such matter.
16.
SITE DISCLAIMER
YOU ASSUME ALL
RESPONSIBILITY AND RISK WITH RESPECT TO YOUR USE OF THE SITE AND ALL CONTENTS,
WHICH ARE PROVIDED ON AN "AS IS" BASIS, TO THE EXTENT PERMISSIBLE BY
LAW. LUCKY BRAND DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND
ENDORSEMENTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO INFORMATION
ACCESSED FROM OR VIA THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT AND
MATERIALS, FUNCTIONS AND SERVICES PROVIDED ON THE SITE, WHICH ARE PROVIDED
WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES
CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, USEFULNESS OR
CONTENT OF INFORMATION, UNINTERRUPTED ACCESS AND ANY WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WHILE LUCKY
BRAND ATTEMPTS TO MAKE YOUR USE OF OUR SITE AND ANY CONTENT PROVIDED THEREIN OR
THEREWITH SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SITE OR ANY
CONTENT PROVIDED THEREIN OR THEREWITH OR OUR SERVERS ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS OR CONTENT OR MATERIALS. LUCKY BRAND DOES NOT WARRANT
THAT THE SITE OR ITS FUNCTION OR THE CONTENTS AND MATERIALS OR THE SERVICES
MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR
THAT DEFECTS WILL BE CORRECTED. LUCKY BRAND MAKES NO WARRANTY THAT THE SITE
WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR
INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE
SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE ARE DONE AT YOUR
OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT
RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
AS FURTHER EXPLAINED
IN THE FOLLOWING SECTION, THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE
FULLEST EXTENT PERMISSIBLE BY LAW.
17. LIMITATION OF
LIABILITY
IN NO EVENT SHALL LUCKY
BRAND OR ITS PARENTS, SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, SHAREHOLDERS OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, DIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND
WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO
NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE
OF OR INABILITY TO USE THE SITE OR THE MATERIALS CONTAINED IN, OR ACCESSED
THROUGH, THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR
RESULTING FROM RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM LUCKY BRAND, OR
THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR
EMAIL, ERROR, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY
FAILURE OF PERFORMANCE.
IN NO EVENT SHALL
THE AGGREGATE LIABILITY OF LUCKY BRAND (WHETHER IN CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY,
STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF OR RELATING TO THE USE OF THE
SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO LUCKY BRAND FOR ACCESS TO OR
USE OF THE SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE. YOUR
ONLY REMEDY AGAINST LUCKY BRAND IN CONNECTION WITH ANY DAMAGES ARISING FROM
YOUR USE OF THE SITE OR ANY CONTENT IS TO STOP USING THE SITE.
SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION
OF LIABILITY FOR DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND
DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT WE MAY NOT, AS A MATTER OF
APPLICABLE LAW, DISCLAIM ANY WARRANTY OR LIMIT OUR LIABILITY, THE SCOPE AND
DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM
PERMITTED UNDER SUCH LAW.
18.
MOBILE ALERTS POLICY
Call Recording and Monitoring. You acknowledge
that telephone calls made to, or received from or on behalf of, Lucky Brand may
be monitored and recorded and you agree to such monitoring and recording.
Express Consent to Text Messages. By opting in to
receive text messages from Lucky Brand, which may include without limitation
SMS messages or MMS messages, (the “Program”), you provide your express
consent to receive automated text messages from Lucky Brand at the mobile
number you provided, including text messages that may be sent using an
automatic telephone dialing system. Consent to receive automated text messages
This is not a condition of any purchase.
Program Details. The Program may
include recurring and nonrecurring transactional and promotional text messages
related to promotions, products, your account, changes and updates, events,
special offers, service outages, reminders [(including cart reminders)], follow
ups to any push notifications delivered through our mobile app, any other
information regarding any transaction or your relationship with Lucky Brand, as
well as other information that we think will be of interest to you. Text
message frequency will vary. Lucky Brand reserves the right to alter the
frequency of text messages sent at any time, such as to increase or decrease
the total number of sent text messages. Lucky Brand also reserves the right to
change the short code or phone number from which text messages are sent. Text
message and data rates may apply. Not all mobile devices or handsets may be
supported, and our text messages may not be deliverable in all areas. The
content of our text messages may not be available and viewable on all mobile
phone carriers. Lucky Brand, its service providers, and the mobile phone carriers
supported by the Program are not liable for delayed or undelivered
messages.
Cancellation. You may opt out of
the Program at any time. Text the keyword STOP to the phone number or short
code 44634 to cancel your participation in the Program. After texting STOP to
short code that messaged you, you will receive one additional message
confirming that your request has been processed. You acknowledge that our text
message platform may not recognize and respond to unsubscribe requests that do
not consist of the STOP keyword commands and agree that Lucky Brand and its
service providers will have no liability for failing to honor such
requests.
Privacy. Please review our Privacy
Policy for information about our privacy practices.
Help and Customer Care; Contact Us. You can text the
keyword HELP to the phone number or short code that messaged you to receive
customer care contact information. If you are experiencing any problems or have
questions related to the Program, please contact here or by phone at (866)
975-5825.
Providing Telephone Numbers and Other
Contact Information. When you provide your contact information to Lucky Brand, you certify
that any such contact information, including, but not limited to, your name,
mailing address, email address, and residential, business or mobile telephone
number, is true, accurate, and current. As such, you certify that you are the
current subscriber or owner of any telephone number(s) that you provide. You
understand that you are strictly prohibited from providing a telephone number
that is not your own. If you have an account with us, and if we discover that
any contact information provided by you when you set up the account is false or
inaccurate, we may suspend or terminate your account at any time.
Change in Ownership of Telephone
Number(s). If you opted-in to receive SMS text messages from us as set forth below,
and the ownership of your telephone number(s), were to change, you agree to
immediately notify us before the change goes into effect by replying STOP to
any text message you receive from us or by texting STOP to short code 44634.
19. TERMINATION
These Terms are effective unless and
until terminated by either you or us. You may terminate these Terms at any time
by notifying us that you no longer wish to use our services, or when you cease
using our Site, whichever occurs first.
We reserve the right, without notice
and in our sole discretion, to terminate your ability to use the Site, refuse
service, terminate accounts, remove or edit content, or cancel orders, and to
block or prevent future access to and use of the Site.
20.
MODIFYING THESE TERMS
Lucky Brand may make changes to these
Terms from time to time. If Lucky Brand makes changes, it will provide you with
notice of such changes, such as by sending an email, providing a notice via its
website, or updating the date at the top of these Terms. Unless Lucky Brand
says otherwise in its notice, the amended Terms will be effective immediately.
Unless material changes are made to the arbitration provision under Section 11, Dispute Resolution; Binding Arbitration, you agree that
modification of these Terms does not create a new right to opt out of
arbitration.
21.
ENTIRE AGREEMENT; SEVERABILITY; NO WAIVER
These Terms, including any applicable
policy contained in the Site, constitute the entire agreement between you and Lucky
Brand relating to the subject matter addressed herein. If any provision of
these Terms shall be deemed unlawful, void, or for any reason unenforceable,
then that provision shall be deemed severable from these Terms and shall not
affect the validity and enforceability of any remaining provisions. The waiver
of any provision of this agreement shall not be considered a waiver of any
other provision or of Lucky Brand’s right to require strict observance of each
of the terms herein.
22.
SURVIVAL
The parties’ respective rights and obligations under Sections 1, 3, 4, 12, 13, 16, 17 and 18 of these Terms, together with all other provisions that may reasonably be construed to survive, will survive the expiration or termination of these Terms for any reason.
23. MISCELLANEOUS.
The failure of Lucky Brand to exercise or enforce any right or provision of these Terms will not operate as a waiver of that right or provision. Except as otherwise stated, if any provision or part of a provision of these Terms other than Section 11, Dispute Resolution; Binding Arbitration, is found to be unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any references to “including” will be deemed to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions with Lucky Brand may be conducted electronically.
24.
INFORMATION OR COMPLAINTS FOR CALIFORNIA USERS
Under California Civil Code Section
1789.3, California users are entitled to the following consumer rights notice:
If you have a question or complaint regarding the Site, please send an e-mail
to [email protected]. You may also
contact us by calling us at (866) 975-5825. California residents may reach the
Complaint Assistance Unit of the Division of Consumer Services of the
California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento,
CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
25.
CONTACT US & ADDITIONAL ASSISTANCE
If you do not understand any of the
foregoing Terms or if you have any questions or comments, we invite you to
contact our Customer Service Department here or by phone at (866)
975-5825.