TERMS OF SERVICE

  1. ACCEPTANCE OF TERMS Lerner New York, Inc. d/b/a “New York & Company” (hereinafter referred to as "we," "us," "our" or Provider) makes this website, including all images, information, documents, communications, files, text, graphics, software, products available through the site (collectively, the "Materials") and all services operated by Provider and third parties through the site, available for your use subject to the terms and conditions set forth in these Terms of Service and any changes to the terms and conditions that Provider may publish from time to time (collectively, the "Terms of Service" or "Agreement"). "User Content" as used in this Agreement means all images, information, documents, communications, files, text (including user comments and reviews) and graphics that you or another site user uploads. These Terms of Service are also a legal agreement between you and Provider, establishing the terms and conditions under which you will submit information to, and borrow or purchase garments, clothing and accessories (each a "Product" and collectively, "Products") and receive related subscription services ("Services") or any other products or services introduced from time to time from Provider via our website at NYandCompanyCloset.com (including the mobile website and any Provider applications) (hereinafter, the "Website"). By accessing or using this Website in any way, including, without limitation, use of any of the Products or Services, downloading of any Materials, purchasing of any Services or merely browsing the Website, you agree to, and are bound by, this Agreement. You further agree that these Terms of Service will govern your relationship with Provider, whether you access our Products or Services through the Website, through a mobile device or application or through a third party site, such as Facebook or other website.

  2. This Website accommodates visitors (who merely browse the Website without special access), guests (who are given special access to browse our Products), and members (who subscribe to our paid-for Services as described more fully below). As used in this Agreement, the term "user" or "you" refers to you whether you are a visitor, guest or member. BEFORE YOU CHECK THE BOX AND CLICK ON THE "SUBMIT" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE "SUBMIT" BUTTON, ORDERING THE PRODUCTS, OR CONTINUING TO USE THE WEBSITE OR SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCEPT THESE TERMS, IN WHICH EVENTYOU WILL NOT BE PERMITTED TO USE OUR SERVICES OR ORDER OUR PRODUCTS THROUGH THE WEBSITE. WE RESERVE THE RIGHT TO CHANGE THESE TERMS OF SERVICE AT ANY TIME IN THE FUTURE AND ANY CHANGES WILL APPLY TO YOUR USE OF THIS WEBSITE AS WELL AS THE PURCHASE AND USE OF ALL THE PRODUCTS AND SERVICES AFTER THE DATE OF SUCH CHANGE.

  3. You agree and acknowledge that through your Provider subscription you are borrowing the Products and that ownership of the Products remains with Provider at all times. We lend our Products only to adults who may purchase a subscription package with a valid credit card or other approved payment method. As such, you represent that you are 18 years old or older.

  4. You can borrow 3 Products any particular time.

  5. Provider reserves the right to change this Agreement and other guidelines or rules posted on the Website from time to time at its sole discretion. Your continued use of the Website, or of any Materials or Services accessible through it (including the continued borrowing of Products), after such update has been posted constitutes your acceptance of the changes. Your use of the Website will be subject to the most current version of this Agreement, rules and guidelines posted on the Website at the time of such use. You should periodically check this Agreement to view the then current terms. If you violate or fail to comply with any of the terms of this Agreement, your authorization to use this Website and to receive our Services automatically terminates.

  6. THE PROVIDER SERVICE. The Services allows registered members (referred to as "members") to access the Website and borrow Products from Provider in accordance with the member's selected subscription package and these Terms of Service. With payment of the subscription fee, the member can choose Products to borrow from our online selection on the Website, and have them shipped to the member's address. The specific rules that govern the borrowing of Products vary and will depend on your particular subscription package; these rules are outlined on our Website. We limit the number of Products that a member may borrow at any one time, and such limitation depends on your particular subscription package. Keep in mind that for purposes of determining the number of items you may borrow at any particular time, Products are considered borrowed and in your possession while in transit and until the Products are delivered to us. Delivery time for a Product a member selects to borrow may vary based upon inventory availability, the member’s delivery address, the time when a member places an order or return notifies, the number of items the member already has in their possession, prioritization, and other factors related to shipment or delivery. As such, Provider is unable to make any guarantees as to actual shipment or delivery times. We reserve the right to process orders and otherwise ship to our members in accordance with our delivery and mailing schedules. The risk of loss for Products shipped passes to the member upon the delivery your purchase of the Product(s). Likewise, we will bear the risk of loss once you deliver the Products(s) to our chosen carrier with our return labels affixed to the package. In order to confirm that the risk of loss has transferred back to us, you must record the tracking number of the return envelope. If you fail to follow this step, the risk of loss will remain with you until the Product(s) are delivered to Provider. At all other times, you bear the risk of loss and are responsible for the Product(s).

  7. We reserve the right to require the return of any or all borrowed Products in the member's possession in the event the member fails 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 the member.

  8. SHIPPING, ORDERS AND RETURNS Subject to the limitation regarding the maximum number of Products you may possess at any one time depending on your subscription package, you may order and return Products as many times as you wish while you are a member, and provided that you comply with these terms, shipping costs will be paid by us. With every set of Products shipped to you we include a return package for which postage has already been paid, which you may use to return Products with absolutely no shipping cost. You must return all of the Products in your possession in the provided return package in order to receive free shipping. If you purchase a Product through the “Try Then Buy” option while you are in possession of the maximum number of Products that are permitted under your subscription package we will wait until you have returned all Products associated with your subscription package before shipping out the next Product. All Products must be returned together in the same provided return package.

  9. BECOMING A MEMBER AND OBTAINING AN ACCOUNT. Before you can begin use of the Services, you must register as a member through the Website and obtain an account ("Account"). You must have a valid credit card and Internet access to use our service. By registering as a member through the Website, you give us permission to save your credit card information and to use that information to charge your card every billing period for your selected subscription. You further authorize the use of your card for any Try Then Buy purchases. You must be 18 years of age or older to register as a member and use the Services. Your membership will automatically renew for successive membership periods of your plan, unless you cancel your membership or your membership is otherwise determined by Provider to be terminated under these terms and conditions. You agree to provide true, accurate, current and complete information about yourself as prompted by the Website's registration form (such information referred to as the "Registration Data"), and you agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you move or your contact information changes, please notify customer service immediately. At all times, you must provide contact information with which we can reach you via telephone and email. We may contact you from time to time in order to evaluate our service and to ensure your optimal utilization of the Services. Calls may be monitored and recorded for record keeping, training, and quality-assurance purposes. You are responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer. You are solely responsible for any activity related to your Account. If you suspect any unauthorized use of your Account, notify us immediately.

  10. BILLING. When you join as a member you will be required to provide us with accurate, complete and current credit card information for a valid credit card that you are authorized to use. We do not accept pre-paid cards or external gift cards, as determined by Bank Identification Number. By purchasing a subscription, you authorize us or our agent to bill your credit card the applicable subscription fees, based on your selected subscription package, any and all applicable taxes, and any other charges you may incur in connection with your use of the Services, such as item upgrades, and “Try Then Buy” purchases. The applicable subscription fees and taxes will be charged to your credit card on the date your membership is created and every monthly billing period thereafter, on the calendar day corresponding to the commencement of your membership (the "Membership Anniversary Day"). If your Membership Anniversary Day does not exist in a particular month (because your Membership Anniversary Day is the 29th, 30th or the 31st of the month) then we will charge your credit card on the last day of that month. Other fees, including but not limited to “Try Then Buy” Purchases will be charged to your credit card as you incur them.

  11. If we do not receive payment from your credit card provider or if your credit card expires or is rejected, 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. You authorize us to charge outstanding fees and other amounts due us against any credit card you have on file with us. We reserve 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.

  12. If your account is more than 30 days past due, and is forwarded to a collections agency, you will additionally be liable for any recovery fees charged by the agency. 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, membership, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within 90 days after they first appear on your credit card statement. If you do not bring these issues to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. We may modify the price, content, or nature of the Services at any time. At our sole discretion, we may grandfather in the prices of certain members based on factors such as sign up date and good standing. Provider will notify members receiving such grandfathered rates prior to the implementation of any price change. If we modify any of the foregoing terms, you may cancel your membership, and such cancellation shall be your sole remedy. We may provide notice of any such changes by email, notice to you upon log-in, or by publishing them on the Website.

  13. CANCELLATION, COSTS, AND REFUNDS. You may cancel your membership at any time by following the procedure on the “Cancel Subscription” section on your account page of the Website (account page provides call to cancel information). You will receive an email confirming the cancellation of your account within one (1) hour of the cancellation taking effect. If you do not receive a cancellation confirmation email within one hour, please call Customer Service immediately as your cancellation may not be complete.

  14. Cancellation is effective immediately upon completing the cancellation process, which means that after you cancel your membership you will not be sent additional Products. You will, however, be permitted to keep the Products that are already in your possession for the remaining portion of the membership period for which you have already been billed. We do not offer refunds, partial refunds or credits on any Provider subscriptions.

  15. If you cancel your account, you must ensure that all borrowed Products are delivered to us within 7 days following the expiration of such membership period. Provider recommends that you mail the Products to us as soon as possible after the expiration of your membership term so that the Products are in fact delivered to us within the 7 day period. You must record the tracking numbers and the contents of all bags sent after cancellation. If all outstanding Products are not delivered to us within that time, Provider reserves the right to charge you a Replacement Fee for each of the items outstanding at the expiration of the 7 days. The Replacement Fee is 75% of the retail price of the Product. Failure to return all outstanding Products in your possession in accordance with this paragraph will result in charges to your credit card for the Replacement Fees. You agree and understand that by failing to return an outstanding Product as provided herein, you are agreeing to the Replacement Fee and you understand that the Product, upon payment of the Replacement Fee, is purchased by you and is thereafter your property.

  16. BUYING GARMENT AT HOME. You may buy the Product At Home with you in your physical possession by using the online “Try Then Buy" option. When you confirm the purchase of the garment, your credit card on file with us will be charged and the garment is yours to keep forever. After the transaction is processed, we will remove the item from your At Home section and send out an additional Product. The price shown, at any point in time, is good for that time only, and is subject to change. If a “Try Then Buy” price is not displayed, it is not yet eligible for purchase – please check back at a later time. The Products At Home are sent to you after due checking and cleaning. Check the garment thoroughly and satisfy yourself of its condition before making a purchase. NOTE, ONCE YOU PURCHASE A PRODUCT THE TRANSACTION IS COMPLETE AND WE WILL NOT SUBSEQUENTLY ACCEPT A RETURN OF THAT PRODUCT OR REFUND YOU FOR ANY REASON.

  17. DAMAGED PRODUCTS Provider will not hold you responsible for normal wear and tear that occurs through use of the Products. However, we do reserve the right to charge your credit card a Replacement Fee for each Product returned in a damaged condition that, in our sole discretion, exceeds normal wear and tear, or evidences recklessness or carelessness with respect to your possession or use of the Product.

  18. ITEMS ERRONEOUSLY RETURNED TO PROVIDER From time to time, we receive items that do not belong to Provider in our return envelopes. We are not responsible for such items, but we will use reasonable efforts to notify the sender of any items discovered, but we do not have a lost and found service, and are not responsible or liable for items sent to us in error. In case you realize you’ve sent something important, please notify customer service as soon as possible so we can attempt to locate it. If we are able to find it, we will work with you to secure its return. At all times, however, the liability for the item remains with you.

  19. INTELLECTUAL PROPERTY; LIMITED LICENSE TO USERS The Materials and Services on this Website, as well as their selection and arrangement, are protected by copyright, trademark, patent, and/or other intellectual property laws, and any unauthorized use of the Materials or Services on this Website may violate such laws and these Terms of Service. Except as expressly provided herein, Provider does not grant any express or implied rights to use the Materials or Services. You agree not to copy, republish, frame, download, transmit, modify, lease, sell, assign, distribute, license, sublicense, reverse engineer, or create derivative works based on the Website, its Materials, or its Services or their selection and arrangement, except as expressly authorized herein. In addition, you agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with the Website.

  20. In addition to the Materials and Services offered by Provider, this Website may also make available materials, information, products and services provided by third parties (collectively, the "Third Party Services"). The Third Party Services may be governed by separate license agreements that accompany such services. Provider offers no guarantees and assumes no responsibility or liability of any type with respect to the Third Party Services. You agree that you will not hold us responsible or liable with respect to the Third Party Services nor seek to do so.

  21. TRADEMARK INFORMATION. The trademarks, logos, and service marks, including "Provider," (the "Marks") displayed on this Website are the property of Provider or other third parties. You are not permitted to use the Marks without the prior written consent of Provider or such third party that may own the Marks.

  22. LICENSE TO PROVIDER FOR USER CONTENT Our Website accommodates User Content, including member comments, reviews and recommendations. By submitting any User Content to this Website you warrant that you are the sole copyright owner of such uploaded content and that our presentation on the Website of such content will not infringe any intellectual property belonging to a third party. By uploading any User Content you grant us a worldwide, perpetual, royalty-free, non-exclusive license to publicly display and present such content, and to modify, compile, reproduce, sell, license and distribute such User Content in its original form or as any derivative of such User Content without payment or royalty to you. This section applies to all social media pages operated by Provider. For licenses granted on other social media platforms, please see our Social Media Policy http://www.nyandcompany.com/static/social/terms-conditions/.

  23. DIGITAL MILLENNIUM COPYRIGHT ACT If you are a copyright owner or an agent thereof and believe that any User Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You may send the notification to us at carequest@nyandcompany.com. Please include “Digital Millennium Copyright Act Notice" in the subject line.

  24. PROHIBITED COMMUNICATIONS. You are responsible for all statements you make on this Website. Provider takes absolutely no responsibility for statements you make on or through the Website, and you agree to indemnify us for any loss we realize as a result of any demand, clam or legal action received or taken against us because of your User Content or your violation of these Terms of Service. You may submit only User Content to the Website and our social media pages that is not in breach of these Terms of Service. Uploaded User Content must be either (a) owned by you, (b) submitted with the express permission of the owner or within the scope of the license to such content, or (c) in the public domain. You are prohibited from posting or transmitting to this Website any unlawful, threatening, harassing, libelous, offensive, defamatory, obscene, or pornographic materials, or other materials that would violate any law or the rights of others, including, without limitation, laws against copyright infringement, and rights of privacy and publicity. Violation of these restrictions may result in automatic and immediate denial of or limitations on access by you to this Website.

  25. USER CONDUCT In using the Website, including all Services and Materials available through it, you agree: (a) not to disrupt or interfere with any other users’ use or enjoyment of the Website or affiliated or linked sites; (b) not to upload, post, or otherwise transmit through the Website any viruses or other harmful, disruptive, or destructive files or functions; (c) not to disrupt or interfere with the security or privacy of, or otherwise cause harm to, the Website, or any Services, Materials, system resources, servers, or networks connected to or accessible through the Website or any linked sites; and (d) to abide by all listed guidelines for participation on the Website or our pages or communications on any social media platform. For further details, please see our Social Media Policy.

  26. MANAGING CONTENT AND COMMUNICATIONS Provider reserves the right, in its sole discretion, to delete or remove User Content from the Website and to restrict, suspend, or terminate your subscription and access to all or part of this Website, at any time without prior notice or liability. Provider reserves the right to pursue all reasonable redress including full compensation for any damages associated with malicious or other behaviors or actions resulting from unauthorized use of this Website. Provider may, but is not obligated to, monitor or review any areas on the Website where users and members transmit or post User Content. To the maximum extent permitted by law, we will have no liability related to User Content. Provider disclaims all liability with respect to the misuse, loss, modification, or unavailability of any User Content. Since we do not control the User Content posted on the Website, we cannot and do not guarantee the accuracy, integrity or quality of such User Content. Provider takes no responsibility whatsoever with respect to the accuracy or integrity of any User Content, including reviews and recommendations, made available on the Website. More specifically, our users may upload reviews or comments concerning the Services or the Products we make available on or through the Website. Any such opinions or advice are those of the respective authors and not of Provider.

  27. DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITY The Materials and Services (including the Products provided under the Service or Purchased through the Website) are provided "as is"; Provider makes no representations or warranties of any kind with respect to the Services, Products provided with the Services, the Website, or any contents therein. Provider assumes no liability or responsibility for any errors or omissions in providing the Materials and Services, any failures, delays, or interruptions in the shipment of Products, delivery of any content contained on the Website, any losses or damages arising from the use of the content provided on the Website, goods or services provided by Provider, or any conduct by users of the Website. Provider reserves the right to refuse to ship Products in its sole discretion.

  28. PROVIDER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE SERVICE, THE PRODUCTS, AND THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. IN ADDITION, PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON OR ACCESSIBLE VIA THE WEBSITE OR THROUGH THE SERVICE IS COMPLETE OR CURRENT.

  29. PROVIDER AND ITS AFFILIATES, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS WILL NOT BE HELD LIABLE FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES) INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, REGARDLESS OF WHETHER THESE PARTIES HAD ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. PROVIDER AND ITS AFFILIATES, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SERVICE, THE PRODUCTS, THE WEBSITE OR THESE TERMS OF SERVICE WHETHER IN CONTRACT OR IN TORT, SHALL NOT EXCEED THE AMOUNTS PAID TO PROVIDER BY YOU UNDER THESE TERMS OF SERVICE (INCLUDING YOUR SUBSCRIPTION FEES). EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. Some states do not allow the foregoing limitations of liability, so they may not apply to you.

  30. TERMINATION You agree that Provider, in our sole discretion, may terminate your password, Account, or use of the Services or the Website 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 this Agreement. You agree that any termination of your access to the Services or the Website 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.

  31. TAXES All applicable local, city, and state taxes arising from your purchase of a Product or Services are your responsibility. You agree to pay these taxes.

  32. INDEMNITY AND LIABILITY You agree to indemnify and hold Provider, and its subsidiaries, affiliates, officers, directors, agents, partners and employees, harmless from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of your use of the Website, your connection to the Website, your violation of these Terms of Service or your violation of any rights of another person or entity.

  33. PERSONAL INFORMATION AND PRIVACY You understand and agree that Provider may disclose information about you if we have a good faith belief that we are required to do so by law or legal process, to respond to claims, or to protect the rights, property, or safety of Provider or others. Please refer to our Privacy Policy for more information about the manner in which we protect and use your information.

  34. GOVERNING LAW, JURISDICTION, VENUE AND ARBITRATION This Agreement is governed in all respects by the laws of the State of Delaware. BY ACCEPTING THIS AGREEMENT AND USING THE SERVICE, YOU ACCEPT AND CONSENT TO THE PERSONAL JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS IN NEW YORK, NEW YORK, FOR ANY COURT ACTION OR PROCEEDING DEEMED NECESSARY BY PROVIDER TO COLLECT AMOUNTS DUE HEREUNDER, TO RECOVER ITS PROPERTY, AND/OR TO PROTECT PROVIDER FROM THEFT OR FRAUD.

  35. Any other controversy or claim arising out of or relating to this Agreement, the Services, the Products, or the Website shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration or action with any claim or controversy of any other party. The arbitration shall be conducted in New York County, New York, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by Delaware law. Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.

  36. GENERAL The Terms of Service and the other agreements, rules, guidelines, licenses and disclaimers posted on the Website constitute the entire agreement between Provider and you with respect to your use of the Website and any of the Services or Products made available through the Website. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Agreement shall continue in full force and effect. Any failure by Provider to enforce or exercise any provision of this Agreement or related right shall not constitute a waiver of that right or provision.