TERMS AND CONDITIONS OF SALE
LAST UPDATED - 30 August, 2023
Welcome to ESPRIT!
These terms and conditions govern your access to and use of www.esprit.us and any other website or application in which we present these terms and conditions (collectively with any content, shopping services, and community services provided through those sites and apps, the “Platform”). The Platform is operated by Esprit US Retail Inc. (“ESPRIT”, “we”, “us” or "our”), a company incorporated in the United States. These terms and conditions include and incorporate the additional policies and terms referenced here (collectively with these terms and conditions, the “Terms”). Please read these Terms carefully and in their entirety, as they include important information about your legal rights, remedies, and obligations.
YOU AND ESPRIT AGREE THAT ALL DISPUTES AND CLAIMS WILL BE BROUGHT IN AN INDIVIDUAL CAPACITY (AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING) AND RESOLVED THROUGH BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THESE TERMS; OR (iii) YOUR USE OF THE PLATFORM, YOUR ACCOUNT OR YOUR USE OF ESPRIT’S SOFTWARE. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY.
ESPRIT reserves the right to modify these Terms at any time without prior notification by posting the amended Terms on the Platform. Your continued use of the Platform, use of your Account (as defined below) or use of ESPRIT’s ecommerce solutions affected by the amendment will constitute your acceptance of the amended Terms.
ESPRIT may operate additional programs or services which require separate or additional terms. In such cases, you agree to be further bound by the terms specific to the additional program or service, and such terms shall control to the extent there is a conflict with these Terms.
To make a purchase on the Platform, you may be asked to complete the Platform’s registration process and create a store account (“Account”), although it is not necessary to create an account in case you want to make a purchase. You must be 16 years old or older to create or use an Account.
Your Account may also include billing information you provide to ESPRIT for pre-orders or for faster future purchases. You are solely responsible for all activities on your Account and for the security of your computer system. You may not reveal, share or otherwise allow others to use your password or Account. You agree that you are personally responsible for the use of your password and Account and for all of the communications and activities on the Platform that result from use of your login name and password. You may not sell or charge others for the right to use your Account, or otherwise transfer your Account, nor may you sell, charge others for the right to use, or transfer any product delivery other than if and as expressly permitted by these Terms.
Please inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password or Account is being, or is likely to be used in an unauthorized manner. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Platform.
As the Account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including your family or friends.
You also understand and acknowledge that Accounts are user rights binding you to such an Account, and that ESPRIT does not recognize any transfer of Accounts or product delivery (including transfers by operation of law) from one holder to any third party. Each customer shall be the sole holder of his/her own Account, and a purchase grants the user only the single right to the delivery of a product. Your purchase is subject to product requirements which you must read before purchasing a product (the “Product”) of ESPRIT. The act of making a purchase constitutes your tacit understanding and compliance with these requirements. ESPRIT shall not be held responsible for any loss, incompatible or erroneous purchases. We encourage you to contact our customer services, in such an event, so we may resolve your problem to the best of our ability.
Your online conduct is expected to be in good faith, non-abusive and not seeking any other personal interest other than the services provided by ESPRIT. ESPRIT reserves the right to take legal action if it finds that any of your activities on the Platform violate these Terms or the law.
Cancellation of Account
You may cancel your Account at any time. You may cease using of an Account at any time or, if you choose so, you may request that we terminate your access to an Account. ESPRIT holds the right to collect fees, surcharges or costs incurred prior to the cancellation of your Account. Any delinquent or unpaid Accounts must be settled before ESPRIT can allow you to register on the Platform again.
ESPRIT may cancel your Account at any time, in the event that (a) ESPRIT closes down the Platform, or (b) you are in breach of any of these Terms. In the event that your Account is terminated or cancelled by ESPRIT for your violation of these Terms or improper or illegal activity, no refund, including any unused funds or credits in your Account, will be given.
Stock Availability and Sales Fulfillment
Products are for sale within the limit of available stock. We try our best to note when items are out of stock, and in the event a Product is purchased when it has become out of stock, we will notify you and will either refund your Account the monies paid for that Product or provide you with the date the Product is expected to be back in stock. After you are notified such expected date, you may choose to keep your order or cancel that item via contacting customer support team. Offers for Products that are out of stock shall be valid on the condition that they can be obtained from ESPRIT’s suppliers. The processing and delivery of orders shall always be honoured upon availability of stock.
Orders and Use of the Services
Your Product order constitutes a binding offer to purchase the said Products (“Product Order”). Upon the placement of a Product Order, we will send you a confirmation message followed by a confirmation email to you (“Automatic Order Confirmation”). The Automatic Order Confirmation does not constitute an acceptance of your Product Order, but a notice of acknowledgement. Your offer is only accepted and the contract of sale for a Product ordered by you is concluded, when the Product is dispatched to you and an e-mail confirmation is sent to you that the Product has been dispatched to you (the “Fulfillment Confirmation E-mail”).
Automatic Order Confirmation errors may occur. Please check the Automatic Order Confirmation for errors and inform us immediately of any discrepancies. You guarantee all information provided when you place the Product Order(s) is true, accurate, up-to-date and complete.
If your Product Order is dispatched in more than one package, you may receive a separate Fulfillment Confirmation E-mail for each package, and each Fulfillment Confirmation E-mail and corresponding dispatch will conclude a separate contract of sale for the Product(s) specified in that Fulfillment Confirmation E-mail.
We reserve the right at any time after receipt of your order to accept or decline your Product Order (or otherwise cancel your Product Order) for any reason. We further reserve the right any time after receipt of your Product Order, without prior notice to you, to supply less than the quantity you ordered of any item or refuse to fulfil your Product Order (in whole or in part). We may require additional verifications or information before accepting any Product Order.
Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your Product Order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your card or payment account in the amount charged for the cancelled portion or the quantity not provided (if your card/account has already been charged for the Product Order); or (b) we will not charge your card/account for the cancelled portion of the Product Order or the quantity not provided. You will be responsible for, and your credit/debit card or other third-party payment account may be charged for, the payment of all fees associated with Product Order(s) already processed or shipped. We may refuse any Product Order that is connected with a previous credit card dispute. We may refuse to accept any Product Order if fraudulent activity is suspected, and we may refuse to process any subsequent Product Order from a customer who has a history of placing fraudulent Product Order(s).
Delivery of Physical Goods
Your ordered Product(s) shall be delivered to the address you indicated during the ordering procedure. The delivery day indicated on the Platform is strictly indicative and may vary with the progression of the Product Order. ESPRIT cannot be held responsible for any delayed delivery or the loss of a package by postal services or couriers and ensuing consequences. It is your responsibility to verify the good condition of their package(s) and its content upon receiving the package. In the event the package(s) or content are not in conformity with the Product Order, you shall put in writing on the delivery slip a full description of the content and disconformities, and shall contact our customer support team via the Contact Us page here and as indicated on www.esprit.us and follow the returns procedure provided by our customer support team. For more information about delivery of your ordered Product(s) and returns and refunds, please refer to our Delivery FAQ and Return & Refund FAQ respectively.
At the time of purchase, you may pay with one of the payment methods displayed on the Platform. Any other payment methods will not be endorsed.
You agree to pay all fees and charges incurred in connection with your Product Order (including any applicable taxes, shipping and handling fees and surcharges) at the rates in effect when the charges were incurred. If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents. Indirect taxes, value added taxes, fees, duty, import/export charges, or any similar governmental charges are not included in the price of the Products. The rate of such taxes, duties and charges are set by the destination state or country, and the amount applicable to your Product Order will be shown in the order summary when you check out the Product Order on the Platform. You are responsible for paying any such taxes, fees or charges imposed on your purchase. We shall automatically charge and withhold the applicable taxes, fees or charges for Product Orders to be delivered to addresses within any country, province, state, territory or local jurisdiction that we deem is required at the time of purchase.
Your banking information may be stored by the payment service provider, only if you have selected the option of saving a credit/debit card to your name, for a future use during check out. ESPRIT only stores a record of your transaction with ESPRIT without access to your private banking details and credit history at any point.
Any attempted fraud or deception, regardless of scope, will immediately lead to further action, as part of which all related transaction data might be forwarded to the authorities.
When you provide payment information to ESPRIT or to one of its payment service providers, you establish that you are the authorized user of the credit card, PIN, key or account associated with that payment, and you authorize ESPRIT to charge your credit card or to process your payment with the chosen third-party payment service provider for any purchases or fees chargeable to your Account or your Product Order. ESPRIT may require you to provide your address or other information in order to meet ESPRIT’s obligations under applicable law.
You agree that you will not use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on Product content, to purchase Product(s) at pricing not applicable to your geography, or for any other purpose. If you do this, we may terminate your access to your Account or reject your Product Order.
For more information about payments, please refer to our Payment FAQ.
For Product Orders fulfilled in the United States, the ownership of the Products shall be transferred from ESPRIT to you when the Product is delivered to the shipping address provided by you (where the contract for the sale of Product is concluded). For Product Orders fulfilled outside the United States, the ownership of the Products shall be transferred from ESPRIT to you once the Product is loaded onto the international carrier outside of your country. Any legitimate claims arising from risk of loss, theft or damage during the delivery must be borne must be made to our customer service team within fourteen (14) days after you received the goods or should have received the goods (in case of lost goods). If we determine that your claim is valid, at our discretion, we will either replace the item that was damaged or lost during shipment (subject to availability and using the same shipping method without additional shipping costs, and subject to the same terms and conditions as set forth herein), or we will reimburse you the purchase price and shipping cost paid (provided that the shipping cost did not include other items that were delivered without damage). Should you not honour the payment obligations for any reason whatsoever, ESPRIT shall be entitled to demand that the delivered Products be returned immediately, at your own cost, risk and peril.
ESPRIT makes no representations or warranties, either expressed or implied, regarding any third party. In particular, ESPRIT makes no representation or warranty that any service offered via third-party vendors will not change or be suspended or terminated.
Purchases shipping to countries outside of the United States
The Platform is operated by ESPRIT in the United States. We do not represent that the Products being sold, or the Content (as defined below) on the Platform are appropriate or available for use in countries outside the United States. If you purchase the Product and/or use the Platform from countries other than the United States, you are doing so on your own initiative, and you are responsible for complying with all applicable laws, rules and regulations in connection with your purchase and/or the use of the Platform. We reserve the right to limit the availability of the Platform and/or the provision of any Content, program, product, service, or other feature described or available on the Platform to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any Content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
Please note that documentation such as user manuals, product care and handling instructions and safety warnings may not be in your language; you may not have available manufacturers or other service options for the Product or parts thereof; the Product(s) (and accompanying materials) may not be designed in accordance with the standards of the destination to which you order, product regulations, specifications or labelled in accordance with the requirements applicable in the destination or in your or the destination language.
You agree to comply with all applicable import/export laws and regulations. You agree not to export the Product or allow use of your Account by individuals situated in a country subject to an embargo or prohibition of any form from the United States government, the European Union or NATO. You represent and warrant that you are not located in, under the control of, or a national or resident of, any such prohibited country.
When ordering Product(s) on the Platform for delivery outside of the United States, you will be considered the “importer of record” of the Product in the destination country. You are responsible for assuring that the Product can be lawfully imported to the destination, and you therefore need to comply with all applicable laws, regulations, certifications and rules of the destination into which you import the Product. You may be subject to import duties and taxes, which are levied once the package reaches the specified destination. The custom duties (if any) and estimated taxes will be shown in the order summary when you check out the Product Order on the Platform. Duties, taxes and other charges are determined by the customs agency at the destination and are the responsibility of you. These charges will be due at the time of delivery and are non-refundable. If you fail to pay applicable duties and taxes, the Product Order will be abandoned, and ESPRIT will not refund the abandoned Product Order, including shipping charges and fees.
Any additional charges for customs clearance must be borne by you; ESPRIT has no control over these charges. Customs policies vary widely from country to country, so you should contact your local customs office for further information. Please note the standard for using the Product in the destination before ordering. Product(s) ordered to a destination with different standards cannot be returned for this reason, and no liability will be assumed in any circumstances which may arise for purchasing Product(s) without the correct standards for your destination. Your privacy is important to us, and we would like our international customers to be aware that cross-border deliveries are subject to opening and inspection by customs authorities.
You agree that you will not re-export or commercially re-sell any Product purchased by you on the Platform.
License and user rights
The Platform may require the automatic download and installation of software onto your computer. ESPRIT hereby grants, and you accept, a limited, terminable, non-exclusive license and right to use the software for your personal and non-commercial use (except where commercial use is expressly allowed herein or in the applicable Terms) in accordance with these Terms. The software is licensed and not sold. Your license confers no title or ownership in the software.
You may not use the Internet source code or any software of ESPRIT for any purpose other than the permitted access to the Platform and to make personal and non-commercial use of your Account, except as otherwise permitted by these Terms or under applicable law. Notwithstanding these restrictions, you may not, in whole or in part, copy, photocopy, reproduce, publish, distribute, translate, reverse engineer, derive source code from, modify, disassemble, decompile, create derivative works based on, or remove any proprietary notices or labels from the Platform or ESPRIT software without the prior written consent of ESPRIT.
You are entitled to use the Platform for your own personal use, but you are not entitled to: (i) sell, grant a security interest to other parties in any way, nor to rent, lease or license your Account rights to others without the prior written consent of ESPRIT, except to the extent expressly permitted elsewhere in these Terms; or (ii) exploit ESPRIT software or the Platform for any commercial purpose, except as expressly permitted elsewhere in these Terms.
Non-conforming or Faulty Product
If the Product delivered to you does not conform with your Product Order or is faulty, you must first notify our customer support team via the Contact Us page here and as indicated on www.esprit.us that you are willing to return it within thirty (30) days from the date you receive the Product with the subject-line: FAULTY PRODUCT. You must also provide additional information to explain what is wrong with the Product.
Potential cure. ESPRIT has the right but not the obligation to cure Products delivered to you that are defective or non-conforming. If ESPRIT delivers Products that do not match the Product Order, and you reject such Products, ESPRIT is allowed to notify you of its intent to fix the problem and offer a solution.
Return. In order to return the non-conforming or faulty Product, you must follow the returns procedure provided by the customer support team.
The original invoice of the Product must be included with the returned Product. The Product must be returned in a new and unused condition, with all protective or other materials in place and tags and stickers attached to them (if applicable), as well as with the original box / container, including all accessories and documents. All returns could be subject to strict quality control to ensure that the returned Product satisfies these requirements. If the Product does not meet such standards, the return may be refused, and the Product will be returned to you (at your own cost) or you will be liable for the Product devaluation.
In the case the non-conforming or fault is confirmed, you may ask for an exchange or a refund through our customer support team. Product exchange will only be possible if there is available stock for the relevant Product. If the Product is no longer available, a refund will be granted. The delivery cost of returning a non-conforming or faulty Product paid by you will be reimbursed only if the Product has been verified to be non-conforming or faulty by ESPRIT. In the case of an exchange, the cost of redelivery will be chargeable to ESPRIT.
Right to Return & Process for Returns
You have thirty (30) days, counted from the date when we dispatch the Product, or the maximum amount of time permitted by applicable law, within which to return the Product, with no obligation of justification or payment of penalties. Unless in accordance with your statutory rights, any initial delivery costs paid by you in connection with the Product Order and any delivery costs and clearance costs incurred by you when returning the Product may not be eligible for reimbursement or refund other than in the event of a non-conforming or faulty Product.
The original invoice of the Product must be included with the returned Product. Only Products in new and unused condition with all protective or other materials in place and tags and stickers attached to them (if applicable), as well as with the original box / container, including all accessories and documents shall be accepted. All returns could be subject to strict quality control to ensure that the returned Product satisfies these requirements. If the Product does not meet such standards, the return could be refused, and the Product will be returned to you (at your own cost) or you will be liable for the Product devaluation. In order to return the Product you received, you must follow the returns procedure set out in the section headed “Return procedure” below.
If the Product is returned after thirty (30) days (or the lawful amount of time) or if the returns procedure is not followed precisely, your returned package may be refused and returned to you at your cost. Title and risk to the returned Product will not be taken back or assumed until the returned Products physically arrives back to the designated returns facility and accepted by ESPRIT, and therefore you are advised to use a courier service offering a tracking number, and to take out adequate insurance to cover the potential loss of the Product in transit.
At ESPRIT’s discretion, a refund may be issued without requiring a return. In this situation, ESPRIT does not take title to the refunded item. In this case, ESPRIT will only reimburse you for the actual paid price of the returned Product.
There are several steps to make a return. First, you must notify the customer support team (email@example.com) that you will be returning an item with the subject line “RETURN OF ORDER”. You may also use the Model Return/Cancellation Form set out at the end of these Terms, duly filled in and signed by you. Please set out in your email your order number, the Product you decide to return and the reason for such return. Our customer support team will deal with your return request promptly once we receive your return email and a return label will be provided to you via email. You need to print out the return label and attach the return label on the return package where it is clearly visible before dispatching.
If you have an inquiry regarding using our services or Platform, you may contact our customer support team through the following means any time during the following working hours.
Phone: (866) 3-ESPRIT or (866) 337-7748 (Monday to Friday 9am – 9pm (EST))
Email: firstname.lastname@example.org (all inquiries)
You acknowledge that the provision of customer support is at ESPRIT’s sole discretion and that we have no obligation to provide you with customer support of any kind. You further acknowledge that communications with customer support may be monitored and recorded for quality assurance and feedbacks purposes.
The Platform and all of the Content (defined next) are owned and the property of ESPRIT, our licensees, or our licensors. Your use of the Platform does not grant you any right to this Content.
Unless otherwise explicitly specified, all materials that are included in or are otherwise made available through an of ESPRIT’s services or the Platform (including past, present and future versions of the Platform), including, without limitation: graphics, layout, logos, text, page headers, button icons, scripts, instruction, images, audio, videos, designs, trademarks and logos, any and all copyrightable material (including source, computer, and object code), the “look and feel” of the Platform, and service names of ESPRIT (collectively, the “Content”) are trademarks or copyrights of ESPRIT, and they are owned, controlled or licensed by ESPRIT, our subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent and other laws, rules, regulations and international treaties. ESPRIT’s trademarks and copyrights may not be used in connection with any product or service that is not provided by ESPRIT, or in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits ESPRIT. All other Content not owned by ESPRIT that appear in any of ESPRIT’s services or Platform are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by ESPRIT.
Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by ESPRIT, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Content not expressly granted to you under these Terms are hereby reserved.
The Content may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the prior written authorization of ESPRIT, unless and except as is expressly provided in these Terms. Any other use of the Content without the prior written authorization of ESPRIT is strictly prohibited.
Links to Third Party Websites and Services
Confidentiality and Privacy
No Third Party Rights
You agree that these Terms do not intend to confer and do not confer any rights or remedies upon any person other than you, ESPRIT, and our successors and assigns. Nothing in these Terms is intended to relieve or discharge the obligation or liability of any third persons to you and ESPRIT and our successors and assigns, nor shall any provision give any third parties any right of subrogation or action against you, ESPRIT, and our successors and assigns.
Disclaimer of Warranties
YOU ACKNOWLEDGE THAT YOU CONNECT TO THE PLATFORM AND USE ESPRIT’S SERVICES AT YOUR OWN RISK (INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, DAMAGE RESULTING FROM RELIANCE ON THE PLATFORM OR ESPRIT’S SERVICES, OR OTHER DAMAGES THAT RESULT FROM OBTAINING ANY CONTENT FROM THE PLATFORM OR ESPRIT’S SERVICES INCLUDING COMPUTER VIRUSES). TO THE EXTENT PERMITTED BY LAW, ESPRIT, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS (COLLECTIVELY, THE “ESPRIT PARTIES”) PROVIDE THE PLATFORM OR ESPRIT’S SERVICES, INCLUDING WITHOUT LIMITATION, ESPRIT’S MATERIALS, “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, AND SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES.
NO INFORMATION PROVIDED VIA THE PLATFORM OR ESPRIT’S SERVICES SHALL CREATE ANY WARRANTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ESPRIT PARTIES MAKE NO WARRANTY, REPRESENTATION, COVENANT, OR GUARANTEE WHATSOEVER, EXPRESS OR IMPLIED: (i) AS TO THE VALUE, QUALITY, TIMELINESS, USEFULNESS, RELIABILITY, SECURITY, SUITABILITY, ACCURACY, TRUTHFULNESS, OR COMPLETENESS OF THE PLATFORM OR ESPRIT’S SERVICES; (ii) THAT THE PLATFORM OR ESPRIT’S SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE; (iii) THAT THE PLATFORM OR ESPRIT’S SERVICES WILL MEET YOUR NEEDS OR EXPECTATIONS; (iv) AS TO THE QUALITY OR VALUE OF ANY OF ESPRIT’S PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN VIA THE PLATFORM OR ESPRIT’S SERVICES; (v) THAT ANY ERRORS PERTAINING TO THE PLATFORM OR ESPRIT’S SERVICES WILL BE CORRECTED.
THE ESPRIT PARTIES DO NOT WARRANT THAT YOUR USE OF THE PLATFORM OR ESPRIT’S SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE ESPRIT PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. BY ACCESSING OR USING THE PLATFORM OR ESPRIT’S SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE PLATFORM OR ESPRIT’S SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.
ESPRIT holds no responsibility for any direct or indirect damages a user or a third party may suffer for any reason whatsoever by connecting to the Platform, not having access or being able to log in to the Platform, or that the Platform is or is not working. ESPRIT shall take all reasonable measures to ensure the availability of its services. However, since the transactions are made via the Internet, ESPRIT cannot guarantee the quality of the networks. Technical interruptions are possible. ESPRIT shall attempt to inform you of the reasons for an interruption, to the best of its ability, but holds no responsibility in the event of a delay. ESPRIT holds no responsibility in the event of any loss of your data provided. Customers must always keep a personal copy of files. ESPRIT holds no responsibility for not completing (a) the sales due to events unforeseeable and uncontrollable by ESPRIT, such as technical interruptions, or (b) abnormal orders, orders which are suspected to be placed not in good faith or orders which have not been placed by individuals. Your Product Order may also be declined or cancelled, upon notice to you, if: (a) the Product is unavailable (in which case, if the payment was processed, you will be refunded in accordance with these Terms); or (b) the payment information you provided cannot be verified. If your Product Order contains multiple Products and one or more Products are unavailable, ESPRIT will cancel that particular Product(s) from your Product Order, provide a refund for any payment made for such Product and notify you of such cancellation and refund.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL THE ESPRIT PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, OR ANY OTHER LOSSES OR DAMAGES) ARISING OUT OF OR IN ANY WAY DIRECTLY OR INDIRECTLY RELATED TO: (A) THE PLATFORM, ESPRIT’S SERVICES THE PRODUCT ORDER, ESPRIT’S SOFTWARE, AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF ANY OF THE FOREGOING IN (A); (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE ESPRIT PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF ANY OF THE FOREGOING IN (A); (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE FOREGOING IN (A); OR (F) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE ESPRIT PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE FOREGOING IN (A)), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF THE WARRANTY.
IN NO EVENT WILL THE ESPRIT PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE ESPRIT PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED (A) THE AMOUNT PAID, IF ANY, BY YOU TO ESPRIT FOR THE SERVICES DURING THE PRECEDING YEAR OR (B) ONE HUNDRED DOLLARS ($100.00 USD), WHICHEVER IS THE LESSER AMOUNT.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ESPRIT'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE ESPRIT PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE ESPRIT PARTIES. BY ACCESSING THE PLATFORM AND ESPRIT’S SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
ESPRIT reserves the right, at any time, in ESPRIT’s sole and exclusive discretion, to amend, modify, suspend, or terminate the Platform or ESPRIT’s services, or any part thereof, including without limitation for repair, maintenance, improvement or other technical reason, and/or your use of or access to them, with or without notice. ESPRIT shall have no liability to you or any other person or entity for any modification, suspension, or termination, or any loss of related information.
You (and any third party on whose behalf you use the Platform) agree to defend, indemnify and hold harmless the ESPRIT Parties from all liabilities, claims, damages, losses, costs, and/or expenses, including without limitation, reasonable attorneys’ fees and costs, that arise from or in connection with the following (whether resulting from your activities on the Platform or those conducted on your behalf): (a) your breach or alleged breach of these Terms; (b) your access to or use of the Platform, by you or any person(s) using your Account, or from the Product selection to the creation of an Account, the purchase, distribution, promotion and use of any add-ons or derivative Products; or (iii) your violation of any third party right, including without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right.
You agree that the ESPRIT Parties will not be responsible for (i) losses that were not caused by any breach on ESPRIT’s part, or (ii) any indirect or consequential losses that were not foreseeable to both you and ESPRIT when the contract for the sale of Product(s) by ESPRIT to you was formed.
ESPRIT holds the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, which shall not excuse your obligation to indemnify the ESPRIT Parties. You shall not settle any claim without the prior written consent of ESPRIT.
All photographs used to illustrate the Products and services are for information purposes only and may not represent the Product identically. You are advised that there may be minor differences between the actual Product and the way that it appears on the Platform, e.g., in relation to appearance, color, texture and finish. ESPRIT shall not be responsible for any claim that the Product received does not identically match the Product shown on the Platform.
ESPRIT is not the manufacturer of the Products sold on the Platform. While we work to ensure that Product information on the Platform is correct, actual Product packaging and materials may contain more and different information to that displayed on the Platform. All information about the Products on the Platform is provided for information purposes only. We recommend that you do not rely solely on the information presented on the Platform. Please always read labels, warnings and directions provided with the Product before use.
Customers’ Public Statements
Customers may post reviews, comments and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions or other information on the Platform, as long as the content is not, without limitation, illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of “spam”. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of an e-card or other content. We reserve the right to remove, block, and/or monitor such content, without notice, that we consider, for any reason, to violate these Terms or to be outside the subject scope of the Platform or services. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate these Terms, we may take any action we deem necessary to cure or prevent the violation. If you believe that any content on or advertised for sale on any ESPRIT’s service fails to meet the standard stated above, or that your intellectual property rights are being infringed by an item or information on any ESPRIT’s service, please notify us by contacting our customer support team and we will respond as soon as reasonably possible.
Unless we indicate otherwise, you hereby grant: (a) ESPRIT and its affiliates a non-exclusive, royalty-free, perpetual, worldwide, and fully sublicensable and transferable right and license to use, reproduce, modify, adapt, reformat, publish, translate, create derivative works from, distribute, transmit, perform, and display all data, feedback, or other information submitted, posted, published, transmitted, or displayed on or via the Platform, and to incorporate such data in other works in any form, media, or technology now known or later developed throughout the world; and (b) ESPRIT, its affiliates, sublicensees and transferees the right to use the name that you submit in connection with the same, if they choose. You agree that you may not assert any moral rights (“droit moral”) under this provision.
You agree that the rights you grant above are irrevocable during the entire period of protection of your intellectual property rights associated with such content and material. ESPRIT shall have no obligation of any kind with respect to any such data that you submit, post, publish, display, or transmit via the Platform. You represent and warrant that you have proper authority to grant this license.
To the extent permitted by law, you agree to waive your right to be identified as the author of such content and your right to object to derogatory treatment of such content. You agree to perform all further acts necessary to perfect any of the above rights granted by you to ESPRIT and its affiliates, sublicensees and transferees including the execution of assignments, filings with the appropriate intellectual property authorities, deeds and documents, at their request.
You represent and warrant that you own or otherwise control all of the rights to the content that you post that, as at the date that the content or material is posted: (i) the content and material is true and accurate; and (ii) use of the content and material you supply does not breach any applicable policies or guidelines and will not infringe any third party’s rights or cause injury to any person or entity (including that the content or material is not defamatory). You agree to indemnify ESPRIT and its affiliates, sublicensees and transferees for all claims brought by a third party against ESPRIT or any of its affiliates, sublicensees or transferees arising out of or in connection with the content and material you supply except to the extent that any liability arises from ESPRIT’s failure to properly remove the content when it is notified of the illegal nature of the content arising out of or on the grounds of, or originating from the content that you have communicated to ESPRIT.
Without limiting the foregoing, if you provide ESPRIT with any feedback or suggestions about the Platform, or any Products or services, other than the requirements under the applicable laws (including the data protection requirement), ESPRIT is free to use the feedback or suggestions however it chooses, without any obligation to you.
If you believe that any content on, or within a Product advertised for sale on, the Platform contains a defamatory statement, please notify ESPRIT immediately.
Applicable Law - Competent Jurisdiction
You agree that these Terms shall be deemed to have been made and executed in the State of New York, and any dispute arising hereunder shall be resolved in accordance with the law of New York. Subject to Dispute Resolution by Arbitration below, you agree that any claim asserted in any legal proceeding by you against ESPRIT shall be commenced and maintained exclusively in New York, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. In any dispute arising under these Terms, the prevailing party will be entitled to attorneys’ fees and expenses.
Nothing in these Terms limits or excludes our responsibility for fraudulent representations made by us or for death or personal injury caused by our negligence or willful misconduct.
No Waiver; Assignment Rights
These Terms shall apply to the maximum extent permitted by applicable law. If any of these Terms is deemed invalid, void, or for any reason unenforceable, that condition will be deemed severable, or, to the extent necessary, deemed modified in order to comply with applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions, such provisions will not apply to you.
Except as otherwise expressly stipulated in these Terms, in the event that any provision of these Terms shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of these Terms shall remain in full force and effect.
If you breach these Terms and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these Terms. ESPRIT’s failure to exercise or enforce any right or provision of these Terms shall not be deemed a waiver of such right or provision in that or any other instance. We may assign these Terms at any time without notice to you. You may not assign to anyone else and any attempt by you to assign shall be void. If you do not comply with these Terms, and we do not act right away, this does not mean that we are giving up any rights that we may have (such as taking action in the future).
DISPUTE RESOLUTION BY ARBITRATION
Most customer concerns can be resolved by communicating with our customer service team. If we are unable to resolve your concerns within forty-five (45) days, and a dispute remains between you and us, this section explains how we agree to resolve it.
However, this section does not apply to the following types of claims or disputes, which you or ESPRIT may bring in any court with jurisdiction: (i) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; (ii) claims related to or arising from any alleged unauthorized use, piracy or theft; and (iii) claims using applicable small claims court procedures in appropriate cases.
Arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND ESPRIT ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
You and ESPRIT agree to make reasonable efforts, in good faith, to informally resolve any dispute before initiating arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the claim or dispute and sets forth the relief sought. If you and ESPRIT do not reach an agreement to resolve that claim or dispute within thirty (30) days after the notice is received, you or ESPRIT may commence arbitration. Written notice to ESPRIT must be sent to [160 Varick Street, 4th Floor, New York City, NY 10013] via registered post.
You agree that the United States Federal Arbitration Act applies to and governs the interpretation and enforcement of this Section. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, including all questions of arbitrability, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) by a sole arbitrator in accordance with its Commercial Arbitration Rules and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes, as modified by these Terms, both of which are available at http://www.adr.org. The arbitrator is bound by these Terms, which govern in the event of any conflict with the applicable arbitration rules. This arbitration section will survive any termination of these Terms.
The AAA will administer the arbitration through a sole arbitrator agreed upon by the parties. It may be conducted through the submission of documents, by phone, by electronic means, or in person. The place, or legal seat of arbitration, shall be New York, and the language of the arbitration shall be English.
YOU AND ESPRIT AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA’s PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and ESPRIT also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to these Terms and all other actions or arbitrations. Each party shall be exclusively responsible for paying its own arbitration filing fees, which may later be allocated by the arbitrator as set forth below.
The arbitrator shall issue a reasoned award and, subject to the limitation of liability set forth above, shall have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award.
Each party hereto retains the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorneys’ fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a witness or expert), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed to the extent permitted by law.
YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH ESPRIT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM WILL BE PERMANENTLY BARRED.
General Infringement Claims
If you believe that your rights are being infringed, please contact us. We respond expeditiously to rights owners to communicate concerns about any alleged infringement.
Upon receipt of your infringement notice we may take certain actions, including removing information or any item, all of which are taken without any admission as to liability and without prejudice to any rights, remedies or defenses, for all of which we hold an unmitigated discretion to execute. Furthermore, by submitting an infringement notice, you grant ESPRIT and its affiliates, sublicensees and transferees the right to use, reproduce, modify, adapt, publish, translate, and display its content throughout the world in any media. This includes forwarding your infringement notice to the parties involved in the provision of the allegedly infringing content. You agree to indemnify ESPRIT and their respective affiliates, sublicensees and transferees for all claims brought by a third party against ESPRIT or any of its affiliates, sublicensees or transferees arising out of or in connection with the submission of your infringement notice.
Consent to Communications
By providing us with your contact information and using the Platform, you agree to receive communications via e-mail and/or social media from or on behalf of ESPRIT at the email address or telephone number (including mobile number) you provided. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
ESPRIT will not be deemed to be in breach of these Terms or liable for any breach of these Terms due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire, pandemics/epidemics, or other disaster.
Model Withdrawal/Cancellation Form
(complete and return this form only if You wish to withdraw your Product Order)
To ESPRIT, [160 Varick Street, 4th Floor, New York City, NY 10013, USA].
I/We(1) hereby give notice that
I/We(1) withdraw from
my/our(1) contract of sale of the following goods(1)/for the provision of the following service(1),
Ordered on(1)/received on(1),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
(1) Delete as appropriate