EBY Terms and Conditions of Use
These terms and conditions (“Terms”) govern and apply to anyone accessing or using the website located at www.join-eby.com and any other website(s) owned and/or operated by EBY, LLC (including any of its subsidiaries or corporate affiliates, collectively, “EBY,” “we,” “us” or “our”) and any of their associated web pages (collectively, our “Services”). Please take some time to review these Terms for our Services. By accessing or using the Services, including purchasing any products through the Services, you represent, warrant, understand and agree: (1) to accept, comply with, and be bound by these Terms; (2) that you have the right, authority, and capacity to abide by these Terms; (3) to comply with all applicable laws, rules and regulations concerning your access to and use of the Services; and (4) you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or another applicable jurisdiction. Certain services may be subject to additional terms, guidelines or rules, which will be available in conjunction with those relevant services, and those additional terms will become part of these Terms when you use those services.
ABOUT THE SERVICES
- Services. These Terms describe the terms and conditions on which you may access and use the EBY website located at JOIN-EBY.com (the “Site”), the EBY mobile site (the “Mobile Site”), and related services (together with the Site, the Mobile Site, and the EBY Content, as defined below, the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.
- Changes in Contract Terms. We reserve the right to change the Terms and Conditions of Use on which we offer the Services, including adding new terms or deleting existing ones. If we make any changes, we will give you reasonable and appropriate notice regarding the change. If you do not accept our changed Terms and Conditions, you always have the right to cancel your use of the Services at any time. If you wish to cancel your use of the Services, please contact [email protected]. If you notify us that you do not accept our Terms and Conditions, we may cancel your use of the Services, as we cannot offer Services to different customers on different terms, among other reasons. If you elect not to cancel your use of the Services, your continued use of the Services constitutes acceptance of the changed Terms and Conditions.
- Mobile Use. To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.
- Limitations to Use of the Services. Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not purchase any clothing or accessories (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for her use of the Services and the purchase of any Products, including all legal liability she may incur.
USE OF EBY SERVICES
- Licenses. Subject to the terms and conditions of this Agreement, EBY hereby grants you a limited, revocable, non-transferable and non-exclusive license to access and use the Services for your personal use and not for any commercial use or use on behalf of any third party, except as explicitly permitted by EBY in advance and in writing. Any breach of this Agreement shall result in the immediate revocation of the licenses granted in this paragraph without notice to you.
- Replication/Distribution. Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit our Services or any portion or component thereof unless expressly permitted by EBY in writing. You may not make any commercial use of any of the information provided through our Services or make any use of our Services for the benefit of another business unless explicitly permitted by EBY in advance and in writing.
- Use of Content on Services
- EBY Content. All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“EBY Content”) is available to you on an “as is” basis and is to be used for general information purposes only. We may update the EBY Content, including Product descriptions and specifications, as we deem appropriate and without notice to you.
- 3rd Party Content. The Services may contain content from, links or references to non-EBY websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and EBY is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from EBY, and EBY has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that EBY endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
- Acceptable Use. No part of the Services, including the EBY Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that EBY authorizes you to view, copy, download, and print EBY Content (such as press releases and FAQs) that is available on the Services, provided that: (a) you use the EBY Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the EBY Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the EBY Content. You may not use the Services to: (i) transmit any content, information or other materials that are, or which EBY considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a EBY representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations. You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
- Use of Your Content. If you post, upload or make available to EBY or the Services, or otherwise submit to or through EBY as part of your use of the Services, including the Site, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to EBY a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize EBY to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
- Email Registration. Access to parts of the Services requires the creation of a user account, including a password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. Each time that your password or identification is used, you will be deemed to be authorized to access and use the Services in a manner consistent with the terms and conditions of this Agreement, and EBY has no obligation to investigate the authorization or source of any such access or use of the Services. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify EBY promptly of any unauthorized use of your account or password or any other breach or threatened breach of the Services’ security.
- Access. Any violation of these Terms may result in suspension or termination of your access to the Services and/or removal of Your Content. EBY may also terminate your account if EBY determines that your conduct poses a risk or liability to EBY, or for any other reason as determined by EBY in its sole discretion.
- Indemnification. By using the Services, you agree to indemnify, hold harmless and defend EBY and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.
- Electronic Communications. When you use any of the Services, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site or through the Mobile Site, and you can retain copies of these communications for your records. As a registered user of EBY, you agree to receive emails promoting any special offer(s), including third party offers. 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. You may adjust your email preferences (or unsubscribe from email communications) by contacting us by email at [email protected].
SALE OF PRODUCTS
General Conditions. The Services include the sale of Products. This Section sets out terms and conditions that apply to your purchase of any Product.
- Limits. You acknowledge and agree that we may place limits on the purchase of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit sales of Products for any reason, including but not limited to availability concerns.
- Minors. Products may be worn or purchased for use by individuals under 18 years of age, but we sell our products only to adults, who may purchase the Products with a payment card or other approved payment method. By clicking agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of purchasing the Products as described in these Terms.
- Collections. If you do not pay the amounts you owe to EBY when due, then EBY will need to institute collection procedures. You agree to pay EBY’s costs of collection, including, without limitation, reasonable attorneys' fees.
- Limited Warranty. We will deliver the Products you ordered, including the specified size, color and design, except in the rare event that the Product is unavailable. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any one Product available on our Services to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a replacement product of the same or greater value. EBY has made every effort to display as accurately as possible the colors of the products that appear on the Services. However, EBY cannot guarantee that your computer monitor's or mobile device’s display of any color will be accurate. EBY’s liability to you for failure to comply with any the limited warranted encapsulated in this section is limited to timely delivery of Product conforming to the warranties.
- All Sales As Is. The services and products, including all trial programs, are provided “as is” without any express or implied warranties, including without limitation the warranties of merchantability, quality or fitness for a particular use. THIS DISCLAIMER DOES NOT APPLY WHERE OTHERWISE PROHIBITED BY LAW.
- Purchase Price. The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges (if applicable) listed on the Site in connection with your purchase of the Products. Purchase Price is as listed on the Site at the time of purchase, and is subject to change. All prices on the EBY Services are listed in U.S. Dollars. EBY is not responsible for fluctuations in the currency exchange rates against the U.S. Dollar that may affect the value of international customers’ purchases. EBY reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order for a Product, you authorize EBY to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Unless otherwise provided in these Terms, to the extent items purchased on EBY are subject to tax, such tax will be applied to the Purchase Price, less applicable savings, as required by law.
- Payment by Credit Card. For your convenience, your credit or debit card information will be saved after your first purchase. We will apply that method of payment to all future purchases, unless you notify us online, via email at [email protected]. If you call outside of those hours, leave a voicemail and we’ll get back to you as soon as possible. We accept the following credit cards at this time: AMEX, VISA, MasterCard and Discover Card, and Paypal To maintain uninterrupted benefits on the Services, please update your credit or debit card to reflect your current account information. Please note that by continuing to use the Services, you authorize us to bill the payment method on file, including after its expiration date, until we are notified by you or your bank or financial institution that the account is no longer valid.
Shipping. EBY offers free shipping, and easy returns to and from addresses within the U.S. All deliveries will be made through EBY’s shipping partners, which may change from time to time at our discretion. The shipping method used will be at the discretion of EBY.
The risk of loss and title for items purchased by you pass to you upon EBY's delivery of the items to the carrier. If your package has not arrived by the designated time, please contact us via email at [email protected] for help tracking your package and if necessary, placing a replacement order.
- Returns. We will accept returns of new, unworn items within thirty (30) days of delivery for a refund. Final sale items are not eligible for return. As soon as you wish to initiate a return on our Services, please email [email protected]
- Ownership of Services. The Site, Mobile Site, are owned and operated by EBY. All right, title and interest in and to the materials provided on the Services, including but not limited to information, documents, logos, graphics, sounds and images (the "Materials") are owned either by EBY or by our respective third party authors, developers or vendors ("Third Party Providers"). Except as otherwise expressly provided by EBY, none of the Materials may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted or distributed in any way and nothing on this Site shall be construed to confer any license under any of EBY's intellectual property rights, whether by estoppel, implication or otherwise. EBY does not sell, license, lease or otherwise provide any of the Materials other than those specifically identified as being provided by EBY. Any rights not expressly granted herein are reserved by EBY.
- Copyright. All Site design, text, graphics, the selection and arrangement thereof, Copyright © 2017, EBY, LLC. ALL RIGHTS RESERVED.
- Trademark. EBY, JOIN-EBY.com, the logo, all images and text, and all page headers, custom graphics and button icons are service marks, trademarks, and/or trade dress of EBY. All other trademarks, product names and company names or logos cited herein are the property of their respective owners.
- License for Site. Subject to your compliance with these Terms, EBY grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
- Feedback. By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that EBY may use your Feedback without restriction or obligation to you or any third party.
- Infringement. If you believe in good faith that certain EBY Content or Third Party Content on the Site or Mobile Site infringes your copyright rights, please provide the written information requested below. The procedure outlined below is exclusively for notifying EBY that your copyrighted material has been infringed.
Please provide the following information in the following order:
- A clear identification of the copyrighted work you claim was infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- A clear identification of the material you claim is infringing the copyrighted work, and information that will allow us to locate that material on the Website, such as a link to the infringing material.
- Your contact information so that we can reply to your complaint, preferably including your name, address, email address and telephone number.
- Include the following statement: "I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. This information and notification is accurate. Under penalty of perjury, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
- The notice must be signed by the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notices of claims of copyright infringement on the Website should be emailed to:
[email protected] RE: COPYRIGHT INFRINGEMEN
- Any violation of these Terms may result in suspension or termination of your access to the Services and/or removal of Your Content. EBY may also terminate your account if EBY determines that your conduct poses a risk or liability to EBY, or for any other reason as determined by EBY in its sole discretion.
- In the event your access to the Services is terminated, your Limited License, as described above, shall be revoked; however, the remainder of the terms, including the arbitration agreement and class action waiver, shall continue to apply.
DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
- Limited Warranties. The limited warranties apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by EBY in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms. Your sole and exclusive remedy and EBY's sole and exclusive liability for a breach by EBY of the limited warranties shall be, at EBY's option, EBY's use of its commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of your applicable monthly subscription fee, as applicable (excluding delivery charges if applicable).
- Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET OUT ABOVE, THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, EBY DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE EBY CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS. FURTHER, CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Limitation of Liability -- UNDER NO CIRCUMSTANCES SHALL EBY BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF EBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH HEREIN OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS. FURTHER, CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Jurisdictional Issues. EBY makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside one of these jurisdictions do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in countries outside the United States. Such references do not imply that EBY intends to announce or make available such products or services to the general public, or in your country. Contact EBY at [email protected] to determine which products and services may be available to you.
- Export Laws. The laws of the United States of America prohibit the export of certain software and data and products to particular persons, territories, and foreign states. You agree not to export the Services, including the EBY Content, or any part thereof, in any way, in violation of United States law.
- Governing Law & Venue. These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, except for claims that are to be handled by a small claims court, shall be resolved exclusively by a state or federal court located in New York County, New York, and you specifically consent to the personal jurisdiction of such courts and waive any objection to the convenience of this forum.
- Typographical Errors. In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, EBY shall have the right to refuse or cancel any orders placed for a product listed at the incorrect price. EBY shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card has been charged. If your credit card has already been charged for the purchase and your order is canceled, EBY shall immediately issue a credit to your credit or debit card account in the amount of the charge.
- Entire Agreement. These Terms are the entire agreement between you and EBY relating to the subject matter herein and shall not be modified except by EBY in accordance with these Terms, or as otherwise agreed in writing by you and EBY. No employee, agent or other representative of EBY has any authority to bind EBY with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
- Third Parties. This Site may contain links to websites controlled by parties other than EBY (each a "Third Party Site"). EBY may work with certain partners and affiliates whose sites are linked with EBY. EBY is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third Party Site, any web site accessed from a Third Party Site or any changes or updates to such sites. EBY makes no guarantees regarding the content or quality of the products or services provided by such sites. EBY is not responsible for webcasting or any other form of transmission received from any Third Party Site. EBY is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by EBY of the Third Party Site. You acknowledge that you bear all risks associated with access to and use of content provided on a Third Party Site and agree that EBY is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable Third Party Site if you have any concerns regarding such links or the content located on any such Third Party Site.
- Severability & Waiver. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
- Force Majeure. EBY will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond EBY’s reasonable control.