ARRAY, INC.’S TERMS OF SERVICE
EFFECTIVE AS OF SEPTEMBER 1, 2022
PLEASE READ THESE TERMS OF SERVICE (THESE "TERMS") CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING "I AGREE" OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS.
1. GENERAL CONDITIONS
Modification of the Services or these Terms. Array reserves the right to modify these Terms or modify, suspend, or discontinue the Services at any time for any reason without notice. Please review these Terms from time to time for changes and updates. Array will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to Array upon registration.
Mobile Charges. 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.
Age & Location Eligibility. Persons under the age of 18 may not use the Services and parents or legal guardians may not agree to these Terms on behalf of any persons below the age of 18. You must be 18 years of age or older to register and use the Services and you must reside within the United States or its territories.
Your Account. In order to access certain features of the Site and Services, including without limitation, features that enable you to access our E-shop and Try-On Services, and purchase Items, you must have a valid credit card and Internet access to create an Account and become a Client. In becoming a Client, you represent and warrant that: (a) all required Account Information you submit is truthful and accurate, and (b) you will maintain the accuracy of such Account Information. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have any reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may review, deny, suspend, or terminate your Account and refuse to offer you any and all current or future use of the Services and the Site.
We may also ask you for additional information about your style preferences, size and fit preferences, and allergies in order to establish your jewelry style profile (“Jewelry Style Profile”). In order that the Services work best for you, please keep your Jewelry Style Profile up to date.
You agree to keep your Account Information up to date and accurate at all times, including a valid email address and valid credit card. Array currently accepts Visa, MasterCard, American Express Discover Card, PayPal, Apple Pay, and Google Pay. We do not accept pre-paid or pre-loaded cards or personal checks or travelers checks of any kind. You further agree to bear and accept all responsibility for the confidentiality of your account information and credentials and all use or charges incurred from the use of the Services with your Account. By signing up for the Services, you authorize Array or its agent to bill your credit card for any applicable Deposit (“Deposit” ), any Item purchases, shipping charges (if any), any and all applicable taxes, and any other charges you may incur in connection with your use of the Services.
You agree to notify Array promptly of any actual or suspected unauthorized use of your Account Information or password. If someone accesses our Services using your Account Information, we will rely on that Account Information and will assume that it is really you or someone you have authorized who is accessing the Services. You are solely responsible for any and all use of your Account Information and all activities (including Orders placed through the Services) that occur under or in connection with your Account.
We reserve the right to take whatever action we deem necessary to preserve the security of the Services and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Services under your Account. You may not use anyone else's Account at any time without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual's authorization, or register for an Account on behalf of any group or entity.
In order to provide you with ease of access to your Account, we may place a cookie (a small text file) on the computers from which you access the Website. When you revisit the Website, this cookie will enable us to recognize you as the Account holder and allow you to more easily access your Account.
Account Termination. Your account continues until terminated. Array or you can terminate at any time at their discretion with no cancellation fee and no responsibility for recurring charges after cancellation; provided that all Items you do not wish to purchase is returned prior to termination of the next billing cycle. If such Items are not returned, the Account will not terminate and you will continue to incur recurring charges. Upon termination, your Account Information is not deleted and you can still sign in to the Site until such time as Array limits your access to or suspends your Account. You agree that any termination, limitation of access and/or suspension shall be made in Array’s sole discretion and that Array not be liable to you or any third party for the termination, limitation of access to and/or suspension of your Account. Without prejudice to our other rights under these Terms, if you breach these Terms, we may take such action as we deem appropriate to deal with the breach.
Product Images Variation in color, pattern, texture, and size of gemstones, metals, and size of finished pieces along with the capabilities of our camera and your computer may affect colors and proportions visible to your eye or on your screen. You acknowledge that the actual item delivered may differ from the picture shown or live samples.
2. THE SERVICES
Description. The Services allow registered users to access the Site or App and purchase items via Array’s Eshop or sign up to be styled by an Array Stylist (“Stylist” or “Stylists”) and receive a selection of three pieces of jewelry to try at home (“The Box”). By signing up for a Box, you are able to access 3 pieces of luxury fine jewelry through a Box for a $149 Deposit per Box, and subsequently purchase all, some, or one of the jewelry in the Box. You also agree to comply with any terms, conditions, or policies that Array may provide from time to time on the Site.
Orders. You order ready-made items, made-to-order items, or custom designed items via our Eshop, via the Box, via our Showroom, or via one of our Stylists.
E-shop. Orders placed via the E-shop do not constitute a legal contract until Array ships the product(s) in the order. Your order is subject to cancellation by Array, at Array's sole discretion. Array is not responsible for pricing, typographical, or other errors, in any offer or copy by Array and Array reserves the right to cancel any orders resulting from such errors. All prices and availability are subject to change without notice.
When you add a product to your shopping bag, you may either continue shopping or proceed to the checkout. When proceeding to the checkout, you will be prompted to do so. Once we have received your order, you will receive an email acknowledging the details of your order. This email is not an order confirmation but rather recognition that we have received your requested order.
Please note that this does not guarantee the availability of the merchandise and that all orders are subject to availability. If we are unable to complete your order, you will be notified via email and will not be charged for orders that cannot be fulfilled.
Once an order has been placed, we are not able to modify or cancel your order. We reserve the right to decline or cancel your order in if we are unable to obtain authorization for payment, there are shipping restrictions for a particular product, or we do not have the product in stock.
Products in your shopping bag are not reserved and may be purchased by other clients. Occasionally, we may have just sold a product which you ordered, and have not had time to take it off our site (or it may have been in your persistent shopping cart). We apologize for any disappointment, but we will reach you to see if you would like a substitution, special order, or just a cancellation.
Box. You place an order for a Box by paying the Deposit, and providing your credit card information to Array. By providing your credit card, you are allowing us to use that credit card to process the Deposit e for the Box, to process the Deposit for any and all subsequent Boxes, and pay for any Items or Item-related services offered as part of the Try-On Service or for sale by Array. All Orders are subject to acceptance in Array's sole discretion and availability. Anything in your shopping basket or suggested to you by an Array representative in-person, digitally, via a third party app, email, text, or telephonic conference is not reserved and may not be available or may be purchased by other clients. Array reserves the right to refuse to sell Try-On Service and Items to any user for any reason or no reason at any time. Array will ship Items to try, with your input but at our sole discretion. You will be able to try Items to see what you would like to purchase. Array limits the number of Items you may try at any one time, and all the Items you do not wish to purchase must be returned at the same time and in order to try additional Items. You can decide to keep all, some, or none of the Items in a Box. You must inform Array of your decision prior to keeping or sending back any of the Items. Array will charge you for the Items you keep as described in these Terms of Service. Array reserves the right to require the return of any or all tried Items in your possession in the event you fail to make required payments on time.
Scheduling. When you sign up for a Box and pay the Deposit, you may schedule a date for when you will receive your Box. Based on your preferences, we will provide you with an anticipated shipping date and a projected delivery date. These dates are estimates, not guaranteed dates, and the actual shipping date and delivery date may vary in the ordinary course of business. You may change the scheduled date for your Box if you give us at least seven (7) days' notice before it is due to ship. When you sign up for a Box, you authorize us to charge you for the Deposit in accordance with these Terms of Service. As explained in Section 3, you are responsible for: (i) the Deposit for any Box that is not cancelled with the required notice and (ii) the price of any Items that are not returned in accordance with our policies. These Terms of Service will govern any Box. We may refuse to ship to any address for any reason including, but not limited to, because it is outside the geographic area that we serve (currently only the United States) or it is to an address that we determine is associated with fraudulent purchases.
Try-On and Try-On Period. Through the Try-On Service, you will receive a selection of 3 Items for Try-On (subject to Array discretion and availability) for you to consider purchasing. Each Try-On period will be 7 consecutive calendar days, which will begin on the date you take possession of such Item (“Try-On Period"). You must mail back the Items you decide not to purchase by the 7th day of the your Try-On Period (“Return Date”).
Eligibility Requirements for Try-On or to Purchase Items. The Try-On Service and purchase of Items via the Services are strictly limited to parties who: (a) can lawfully enter into and form contracts on the Internet in accordance with the laws of the States of Florida and Delaware, (b) have been issued a valid credit card and who are authorized to use by a bank acceptable to Array, and (c) have authorized Array to process a charge or charges on their credit card in the amount of the total Retail Value, plus fees and costs, for the Items which they try-on or purchase. In order to submit an Order, you will be required to provide and maintain your personal details, including without limitation, your full, legal name, phone number, email address, phone number, billing address, shipping address, credit card information, and other requested information by Array or its third-party suppliers (“Personal Information”). You represent and warrant that your Personal Information will be at all times valid and correct and you confirm that you are the person referred to in the Personal Information.
Purchase After Try-on Period, Purchase Outside of Try-On, and Exchanges At any time prior to, or on the expiration of an applicable Try-On Period for an Item, you may purchase the Item by selecting the item you want to purchase from the review form we will email you (“Review Form”) or by contacting Array at email@example.com. All sales of Items purchased following the Try-On Period are final and such Items may not be returned to Array. If you have purchased an Item from Array via our eshop or without participating in the home or office Try-On period, you may exchange the item for another item of equal or greater value within 14 days of your purchase. You will be responsible for paying any difference in price between the two Items and any shipping, insurance, and handling costs incurred by you or Array.
Custom Orders. Because not all custom orders are a good fit for us, Array reserves the right to alter, decline, or cancel custom orders. All our custom orders are subject to the following terms and processes: (a) Price quotes for pieces that do not include loose diamond stones, emeralds, sapphires, or rubies are valid for two weeks after they are sent and are subject to change after the two-week period has expired. Because loose diamond and certain gemstone prices vary, quotes that involve loose diamond stones, emeralds, sapphires, or rubies are valid for 48 hours and are subject to change after the 48-hour period has expired. (b) Upon approval of any quote for a custom project, we request full payment before we begin the custom design process. (c)Custom orders are not eligible for any Array promotions or discounts. (d) Upon receipt of payment Array will provide you a Computer Aided Design (CAD). The CAD offers a preview of the final piece. Because we want you to be satisfied with your custom piece, you receive three opportunities to revise the CAD at no charge. (e) Should you require more than three revisions, please let your designer know, and she will advise you of the additional cost. (f) Once you have reviewed the CAD and confirmed your design approval, our master jewelers will then craft your custom piece.(g) Custom orders are designed to meet Array’s quality standards. If there is confirmation of a material or structural integrity defect, we will repair or replace free of charge, as appropriate. We cannot make any design changes once the custom piece has been crafted. (h) Most custom orders are completed within a 6-10 week timeframe. (i) Please let your designer know if you have a deadline by which you would like your custom piece. We will use our best efforts to accommodate an expedited schedule; however, there may be an additional charge to expedite the order and unexpected delays may occur. All delivery dates are estimates only. (j) Array shall not be liable for any special or consequential damages that result from delay in delivery. (k) Please confirm ring and wrist size before finalizing the custom order. (l) Array can accommodate re-sizing requests in limited circumstances. If you request a sizing change after, it will be subject to an additional fee. All custom order pieces are final sale and are ineligible for exchange, return, or refund.
Additional Terms for Custom Jewelry Redesign. These terms govern the acceptance and use of owner’s pieces for the re-designing purpose. Separately, Array’s Terms for Custom Orders govern the redesigning process. Owner is providing at own risk all pieces for the sole purpose of a custom re-design. Within 24 hours or less of accepting pieces for re-design, Array will confirm the authenticity of materials used in each piece. Before and during this interim period, Array is not responsible for any issues or conflicts related to authenticity.While in Array’s possession and premises, the pieces are insured against full loss or theft for the replacement value. Array is not responsible for any loss or theft while pieces are in transit. Array is not responsible for any damage that may occur during the re-design to the original pieces process.
Promotion Codes. Promotion codes are non-transferable and there is no cash alternative. Furthermore, they cannot be used in conjunction with any other promotion code or offers, and must be redeemed by the date published, if provided. Promotion codes are not eligible to be used for already discounted pieces, custom orders, or jewelry redesign.
Shipping and Delivery. All shipping of Orders will be through Array's shipping partners and by Array's desired method, both of which may change from time to time at Array's discretion, but which will include shipping insurance for the Items. A signature confirming receipt is required for delivery of all Items shipped from Array or its shipping partners. Your designated shipping address should be your office or home address or other address where you are assured that someone will be present to sign and receive delivery of the Items ("Secure Shipping Address"). Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which Array will not be liable.
You will be liable for all such delays and additional delivery fees. Array does not bear liability for Items left unattended. Delivery time for Items for Try-On or purchased Items may vary based upon (a) inventory availability, (b) your shipping address, (c) when you place an order, and (d) other circumstances impacting delivery. Accordingly, Array makes no guarantees as to actual delivery time. We will send you an email letting you know when your Item(s) is shipped. All Items will be deemed accepted by you upon shipment, and title to and risk of loss passes to you when we provide the Items to a common carrier. If you are unable to locate a confirmed delivery, you are required to contact Array immediately at firstname.lastname@example.org to place a tracer investigation with the shipping partner. All tracers are dependent on the shipping carriers' variable timeframes to complete and until the results of the investigation are received, we are not able to proceed with the resolution of a lost item. For Items ordered as part of the Try-On Service, any refused or returned deliveries will be processed as a completed home Try-On Service transaction, with any related fees assessed.
Use of Items. Any Item(s) shipped to you for Try-On will have an original product tag affixed onto them. If you remove the tag on any Item, Array will assume that you want to purchase that item and charge your credit card for the corresponding Retail Value, and any applicable taxes for such items. You agree to treat the Items shipped to you for Try-On with great care. Once you take possession of an Item, you are responsible for all loss, destruction, or damage to the Item, regardless of cause. If you return an Item that has had a tag removed or is not in its original condition, as determined by Array in our sole discretion, you agree that Array may charge your credit card for and you will pay a replacement fee, up to the Retail Value, and any applicable taxes for such an Item.
Return of Items for Box. Before or by the seventh day of the applicable Try-On Period, if you decide not to purchase an Item(s), you must return the Item(s) to Array utilizing the pre-printed, pre-paid shipping label that came with your Order and the packaging specified and/or provided by Array. You will ship the Item(s) in accordance with these Terms and the instructions provided to you, including the date by which you must ship the Item(s). Please request a receipt from the shipping partner for proof that you delivered the Item to such shipping partner; without the receipt you will be held responsible if the Item is not delivered to Array. For security reasons, do not disclose the contents of the shipping package to the shipper. Array is not responsible or liable for items sent to us in error. If you realize you’ve sent us an item in error, please contact us at email@example.com as soon as possible so we can attempt to locate it and return it to you.
Limits. Items for Try-On or purchased by you are for personal or gift use and should not be re-sold, used for commercial purposes or any other commercial benefit. We reserve the right to: (a) limit, cancel or prohibit any Try-On or purchases of Items for any reason, including but not limited to fraud or availability concerns, (b) limit the number of Items that you may receive for Try-On at any time, and (c) require the return of any or all Items ordered for Try-On in your possession in the event you fail to make required payments on time or in the event other factors arise which, in our sole discretion, increase the risk of non-timely payment by you. We do not guarantee that every item will meet your preferences or be to your satisfaction. At the end of that Try-On Period, we ask that you rate the items from your Box via the Review Form. Those Items you do not want you must return. We will charge you for the Items you keep, minus the Deposit . Please note that we reserve the right to charge you if you keep any or all of the Items in your Box past the Try-On Period regardless of whether you complete the Review Form or not. Items returned in their original condition within the time specified are not charged. We reserve the right to make a reduced refund, or no refund, if Items are returned late, returned without original tags, or not in their original condition.
3. DEPOSIT, PURCHASE CREDIT, PURCHASE PRICE, TAXES, AND FEES
Deposit for Try-Before-You-Buy Box Service. A Deposit is required to receive one or more Boxes. You pay a $149 Deposit to receive a Box. The Deposit for your Box will be charged to your credit card when you first sign up for a Box. Array will charge your credit card the amount of the Deposit for the Box, plus any and all applicable taxes immediately upon your Order. Within seven (7) days of receiving a Box, we request that you return any Items you don't want to purchase. If you buy one or more Items from your Box, Array will credit the $149 Deposit toward the purchase price of the Item(s). If you don’t purchase anything from your first Box, we will send you a second one without requiring an additional deposit in order to provide you options for a piece(s) you will want to purchase. If after receiving the second box, you are not satisfied, we are happy to apply the $149 Deposit as a permanent credit on your account, eligible to be used on any purchase of any item or service from Array.
Security Hold. At the time of your Order for home try-on of an Item, Array may authorize your payment card for an amount up to the full amount of the original retail value of the Item ("Retail Value") plus applicable taxes at our sole discretion in order to cover loss or theft or damage beyond normal wear and tear ("Security Hold"). If you do not have sufficient credit available on your credit card account to allow the reserve for the Security Hold, we may, at our discretion, cancel the Order.
Authorization. By placing an Order, you hereby authorize Array or its agent to bill your credit card for the applicable home try-on Fees or Purchase Prices, the Security Hold, if applicable, and any and all applicable taxes. We will charge your credit card immediately upon your submission of an Order. We reserve the right to determine whether your credit card(s) is/are pre-authorized to accept a minimum charge equal to each Item, whether for home try-on or purchase. In the event we deem the amount of available credit is not sufficient to cover these amounts, we may request the immediate return of all outstanding Items and/or that you provide a second valid credit card. For Items ordered for home try-on, typically an initial authorization for a nominal amount is processed; this is to verify the validity of the card. There will then be a second authorization for the actual amount of the home try-on Fee, if any, and if applicable, the Security Hold. Once an Order is placed, only the actual amount of the Order and any applicable taxes/fees will be charged, unless an Item ordered for home try-on is returned damaged or is not returned.
Payment Method for E-Shop, Showroom, or Try-Before-You-Buy Box Service. When you purchase an item through our E-Shop or our Showroom, you may pay with a credit card, PayPal, or Google Pay. When participating in the try-before-you-buy service, you may pay for the Deposit and any Items from your Box via credit card only. By submitting your payment information to us, you authorize us to charge your credit card in accordance with these Terms, including for Items that are returned late or damaged.
Box Cancelation or Rescheduling. You may cancel or re-schedule an upcoming Box by emailing firstname.lastname@example.org at least seven (7) days before the Box is due to ship. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We will not be liable in the event your children or others acting with or without your permission use your credit card to make orders on the Services; however, you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your credit card or other payment method.
VIP Terms. Array reserves the right to refuse VIP membership for any cause not prohibited by law. To be considered for VIP membership you are a loyal Array customer who has purchased $1200 in a calendar year. The Try-On Services terms applies to the VIP terms, except that VIPs are eligible to receive five pieces six times a year and keep for ten days. VIPs enjoy for ten days, and have the option to buy anything at 25% off. VIPs are asked to try at least four boxes a year.
Purchase Price. The purchase price for an item purchased via our E-Shop will be listed on the Array website, exclusive of taxes. The purchase price for any pieces in the showroom will be listed on the tag on the piece. The purchase price for each Item in your Box will be the price listed by Array to purchase the Item. The purchase price for each Item will be listed on the packing list included in your Box. To purchase any of the Items sent to you in your Box, please tell your Personal Jewelry Stylist or fill out the Review Form, indicating which Items you are buying and which piece, if any, you intend to send back. Array will charge you credit card the amount of the Purchase Price plus any and all applicable taxes immediately after we receive your Review Form. Orders for the purchase of Items are final and cannot be cancelled. You hereby authorize Array to charge your credit card for the Items you've kept, plus any applicable sales taxes. For pieces in your Box, Array does not disclose the prices of its Items until you receive them. You are responsible for paying for all Items in your Box whether they conform to your tastes and budget, unless you return the Items in accordance with our return policy. You are responsible for the payment of any fees, and state and local sales taxes that apply to your order where we elect or are required to collect and remit such taxes. If we don't collect the applicable sales tax, you are responsible for payment of the applicable use taxes. Array provides certain promotions or credits to customers. Depending on the type of promotion or credit offered, it may reduce the amount of state and local sales taxes that apply to your order. The application of the promotion or credit will be reflected on your receipt.
Repairs, Sizing, Alterations. If you want to alter any of the Items you purchase via Array’s E-shop or in your Box (e.g., a different size ring, necklace, or bracelet), you can request an alteration through your stylist or by emailing email@example.com. An alteration may not be available in all cases. If you elect to receive an alteration,we will charge your credit card for the Item as well as any alteration fees, where relevant, and you shall return the original Item in the prepaid return package by the Return Date. The altered item will be sent separately to you. If you fail to return the original Item by the Return Date or if the original Item is damaged or shows signs of wear, Array may charge you for both the original Item and the altered Item. Your new piece purchased from comes with a one year warranty. This warranty covers all manufacturer defects in material or workmanship but does not cover neglect and abuse or natural wear and tear. Repairs are reviewed on a case-by-case basis and additional charges may apply. Warranty for repair is voided if the item has been altered, resized, or repaired prior to being sent to Array. After the one-year warranty has expired, we offer repairs at very competitive costs.
Exchange Policy At Array we want you to be satisfied with your purchase. Therefore, except for sized, personalized, sale items, or custom, or jewelry re-design items, you may exchange Array jewelry within 30 business days of receiving the item for another item of equal or greater price. If the price of the other item is more than the price of the item originally purchased, then the customer is responsible for paying the difference before the exchange is processed. Please contact firstname.lastname@example.org with the purchaser’s name and invoice number. Once approved for exchange, you will receive an email with an Exchange Authorization Number and instructions for exchanging the item. Array will not accept packages without an Exchange Authorization Number. Array will only accept an exchange if the item is in its original, undamaged and unaltered, saleable condition. All exchanged items must be received within 14 business days of being approved by the customer care representative. Since we offer complimentary shipping within the continental United States for the initial order, the purchaser is responsible for any shipping costs and third-party fees associated with the exchange. Sized, personalized, sale items, or custom items are not eligible for an exchange or return. Array will only accept exchange if the piece is in its original, undamaged and unaltered, saleable condition.
Authorization and Chargebacks. By placing an Order, you hereby authorize Array or its agent to bill your credit card for the applicable Deposits or Purchase Prices, a Security Hold, if applicable, and any and all applicable taxes. We will charge your credit card immediately upon your submission of an Order. We reserve the right to determine whether your credit card(s) is/are pre-authorized to accept a minimum charge equal to each Item, whether for Try-On or purchase. In the event we deem the amount of available credit is not sufficient to cover these amounts, we may request the immediate return of all outstanding Items and/or that you provide a second valid credit card. You agree not to charge back any fees or charges and any charge backs will result in you paying associated chargeback fees.
Ancillary Fees. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within 60 days after they first appear on your Account statement. If you do not bring them to our attention within 60 days, you agree that you waive your right to dispute such problems or discrepancies
Collections. If you do not pay the amounts you owe to Array when due, then Array will need to institute collection procedures. You agree to pay Array's costs of collection, including without limitation reasonable attorneys' fees. If Array does not receive payment from your credit card provider, if your credit card expires or is rejected, or if there is a chargeback for any reason, you agree to pay all amounts due upon demand. Following any such non-payment, we may require you to provide a second valid credit card before continuing to use the Services and you authorize Array to charge outstanding fees and other amounts due us against any credit card you have on file with us. Array reserves the right to take all steps necessary to collect amounts due from you, including but not limited to legal action and/or using third party collection agencies. If your account is forwarded to a collection’s agency, you will additionally be liable for any recovery fees and costs charged by the agency. Array reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
4. ACTUAL DAMAGES, LIQUIDATED DAMAGES, ATTORNEY’S FEES, AND COSTS
Actual Damages for Loss, Theft or Failure to Return an Item. Title to each Item shall remain with Array or the third party designer, as applicable, at all times except upon the completion of your purchase of the Item, or as specifically provided in this paragraph. In the case that any Item or original packaging is damaged, lost, stolen, or not returned to Array when due as described herein, you will also be fully responsible for Array's actual damages, including but not limited to the Retail Price of the Item and the price of replacement of the packaging. If an Item is returned after the Try-On Period, you agree that we will have the right to charge your credit card(s), in our discretion, an amount up to 100% of the Retail Value of each such Item plus any accrued and unpaid Deposits , shipping fees and taxes ("Damages Fees"). In such circumstances, you hereby authorize Array to charge your credit card(s). If we exercise our right to require payment of the Damages Fees due to failure to timely return an Item(s), then we will refuse the return of the Item(s) in question, and you will acquire title to such Item(s) from us. If you return an Item with excessive or abusive damage exceeding normal wear and tear, as determined by Array in its sole discretion, you agree that Array may charge your credit card and collect the Retail Price for the Item. You are also responsible in the event of a theft or loss of an Item and in this event you will be responsible for the Retail Price immediately upon notification of the loss of the Item. Also Array reserves the right to close your account at any time if we notice multiple cases of excessive damage or abuse to Items you have tried.
Liquidated Damages. Array spends significant internal resources on its efforts to reduce and recover losses flowing from customer non-payments, from the theft and/or wrongful retention of its products, and from other improper, negligent or fraudulent acts. Because the amount of these internal losses are incapable or extremely difficult to accurately calculate, and because of factors including, without limitation, our recovery of anticipated profits, our loss of sales, and fluctuations in the value of gems and precious metals you agree that Array is also entitled to collect liquidated, in addition to actual damages, if Array commences collection or legal action to recover any amounts due from you, and/or to recover property wrongfully retained by you. In all cases, the liquidated damages will consist of a $500 per-Item charge for each Item that remains unpaid and/or unreturned at the time that Array commences collection or legal action, which sum is intended to compensate for the expenditure of Array's internal resources as a result of your breach of contract, fraud or other wrongful or negligent acts. You understand and agree that the liquidated damage of $500 per item is not a penalty, but instead is the reasonable and necessary estimate of the sums needed to compensate Array for the loss of its internal resources and for the loss of its future home try-on or purchase income.
Attorney's Fees. If debts are not able to be collected normally and are collected through the use of a collection agency, an attorney, or through other legal proceedings, you agree to pay all reasonable costs or fees, including attorney fees and court costs, incurred in connection with such collection effort.
Reservation of Right. Array expressly reserves its right to seek additional elements of actual damages other than those expressly identified above.
5. USE OF THE SERVICES
Array Content Provided "As Is." All content and information available through the Services, including but not limited to product descriptions, prices and specifications, product photos, advice from Stylists or designers and photos and Submissions from other users, as described below ("Array Content") is available to you on an "as is" basis and is to be used for general information purposes only. Array Content is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. Array Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any Array Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the Array Content.
Updates. We may update or modify the Array Content, including Item descriptions, prices and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to email@example.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
Submissions. The Services may allow you and other third parties to post reviews or comments concerning the Service or the Items we distribute. Any opinions, advice, statements, services, offers, feedback or other information that constitutes part of the content expressed or made available by third parties on the Site or through the Services ("Submissions") are those of the respective authors or producers and not of Array, or its stockholders, directors, officers, or employees. Array may review and delete any Submissions, in whole or in part, that in the sole judgment of Array violate these Terms or which might be offensive, illegal, or that might violate the rights of or harm any third parties. Nonetheless, under no circumstances will Array, or its shareholders, directors, officers, or employees be held liable for any loss or damage caused by your reliance on information or Submissions obtained on the Site or via Services. It is your responsibility to evaluate the Submissions available through the Site or Services. By posting any Submission on the Site or through the Services or submitting information to us, you grant us a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sub-licenseable, worldwide license and right to display, use, publicly perform, reproduce, modify, distribute and create derivative works of the Submission or information submitted in any media, software, or technology of any kind now existing or developed in the future. By posting or providing a Submission or information, you represent and warrant that public posting and use of your Submission or information by Array will not infringe on or violate the rights of any third party.
Links to Third-Party Websites. The Services may contain links or references to non-Access 79 websites, products, services or other materials or content ("Third Party Content"). This Third Party Content is provided to you as a convenience, and Array 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 Array, and Array has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that Array endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
Use of Array Content and Services. Subject to your compliance with these Terms, Array authorizes you to use the Array Content and Services, provided that: (a) you use the Array Content and Services solely for your personal, noncommercial, informational purposes; (b) you do not modify the Array Content or Services; and (c) you do not remove any copyright, trademark, and other proprietary notices on the Array Content or Services. Notwithstanding the foregoing, you may not download (other than through page caching necessary for personal use), modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, offer for sale, or use in any other way the Array Content or Services, or any information contained on, or obtained from, the Site without the express written consent of Array. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and the Services.
Restrictions on the Use of Services. You may not use the Services to: (i) transmit any content, information or other materials that are, or which Array 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 Array 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 18 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.
Delays. There may be delays, omissions, or inaccuracies in the Services, including the Array Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
6. INTELLECTUAL PROPERTY
Ownership of the Services. The Services, including the Array Content and all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of Array and its affiliates, partners and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Other Array product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of Array and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. Array and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms. Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any Array Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of Array or such third party that may own such Array Content or Submission.
Services License. Subject to your compliance with these Terms, Array grants 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 Array may use your Feedback without restriction or obligation to you or any third party.
7. LIMITED REPRESENTATIONS AND WARRANTIES FOR ITEMS
Correct or Unavailable Items. We will deliver the Items in your Order, including the type, style, size, color, and design specified in the applicable Item description on the Site or in the correspondence from your Array Stylist (“Stylist Correspondence”), except in the rare event that an Item is unavailable. In such event, we will use reasonable efforts to notify you that the Item is unavailable for Try-On. If we are unable to reach you, you acknowledge and agree that we may cancel your Order and credit any Deposits and other fees related to the Order. Notwithstanding the foregoing, Items may appear different in color and style than as displayed on the Site and on the Stylist Correspondence. The manufacturer of each Item, and not Array, is responsible for the quality and any warranty of any of its Items shipped or purchased from Acccess79. These limited warranties apply only to you and may not be assigned, sold or transferred to any third party.
Use of Items at Your Own Risk. While we will provide you Items as described in the applicable Item descriptions, we do not expressly or otherwise guarantee or warrant the Items for any specific performance or purpose. You recognize and acknowledge that having the Items you order for home try-on or purchase in your possession or use can be inherently risky and unpredictable. Use of an Item is at your own risk and Array shall not be held liable for any damages, complaints directly or indirectly related to any Item or Transaction. We are not responsible for any accidents or harm that may arise from your possession or use of the Items, and in addition to our other rights and remedies pursuant to these Terms, you hereby agree to indemnify us from any claims, charges or costs arising from your possession or use of Items or any related activities.
8. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION
Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN THE SECTION TITLED "LIMITED REPRESENTATIONS AND WARRANTIES FOR ITEMS", THE SERVICES AND ITEMS, 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, Array DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE Array 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 ITEMS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL Array BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, 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 HOME TRY-ON, SALE OR DELIVERY OF ITEMS, EVEN IF Array HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS.
Indemnification. By using the Services, you agree to indemnify, hold harmless and defend Array and its subsidiaries, officers, directors, agents, affiliates and other partners and employees 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 and/or arising from a breach of these Terms.
Termination By You. You may deactivate your Account by using the features of the Services, and discontinue your use of the Services at any time. You understand that your Account may continue to exist and be used on or through the Service even after such deactivation.
Termination By Array. We, in our sole discretion, may terminate your password, Account, or use of the Service or the Site, and remove and discard any of your Submissions from the Site, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Also, we may, in our sole discretion and at any time, discontinue providing the Services or the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Services or the Site may be effected without prior notice, and you acknowledge and agree that we may immediately suspend, deactivate or delete your Account and all related information and Submissions made from your Account and bar any further access to such information or to the Services or Site. Further, you agree that we will not be liable to you or any third-party for any suspension or termination of the Services or your access to the Site.
Survival. The provisions of these Term which by their terms, require acts and obligations of any party after the expiration or termination of these Terms or the relationship of the parties hereto, shall survive the expiration or termination of these Terms.
Claims of Copyright Infringement. It is our policy to respect the intellectual property rights of others. We do not promote, foster or condone any infringing activity. If you believe your work has been copied in a way that constitutes copyright infringement, are aware of any infringing material on the Site, or know of someone who is making unauthorized use of the content of the Site, please notify us of your concern by submitting an email to firstname.lastname@example.org.
Jurisdictional Issues. Array 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 the United States 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 your country. Such references do not imply that Array intends to announce or make available such products or services to the general public, or in your country. Contact Array at email@example.com to determine which Items 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 to particular persons, territories, and foreign states. You agree not to export the Services, including the Array Content, or any part thereof, in any way, in violation of United States law.
Dispute Resolution. In the event a dispute arises between you and Array, please contact Array. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the Middle District of Florida. Use of the Site or the App is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section. You and Array agree that any cause of action arising out of or related to these Terms or an Order must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes will be resolved by arbitration under this Dispute Resolution section. Arbitration procedures are typically subject only to very limited review by a court. In the event any litigation should arise between the parties in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, the parties waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this Dispute Resolution section must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.
Governing Law. These Terms are governed and interpreted pursuant to the laws of the State of Florida, notwithstanding any principles of conflicts of law.
Entire Agreement. These Terms are the entire agreement between you and Array relating to the subject matter herein and shall not be modified except by Array in accordance with these Terms, or as otherwise agreed in writing by you and Array. No employee, agent or other representative of Array has any authority to bind Array with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
Severability and 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 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.
Assignment. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. Array may assign these Terms at any time without notice to you.
Force Majeure. Array 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 Array's reasonable control.
Contact Information. Please send any questions or comments, or report violations of these Terms, to Array at firstname.lastname@example.org.