NEW YORKER SALES PACKAGE AGREEMENT
NEW YORKER SALES PACKAGE AGREEMENT
IF SELLER WISHES TO SELL OR CONSIGN ITEM(S) ON WWW.BUYGOWN.CO, THEN THE SELLER MUST READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND BY CLICKING "AGREE" THE SELLER CONFIRMS THAT THEY HAVE CAREFULLY READ, FULLY UNDERSTOOD, AND TOTALLY AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TERMS OF SERVICE. BUY GOWN’S TERMS OF SERVICE LOCATED AT WWW.BUYGOWN.CO/TERMS, ARE INCORPORATED BY REFERENCE AND MADE A PART OF THIS AGREEMENT TO WHICH SELLER IS AGREEING, AND SUCH TERMS OF SERVICE ADDITIONALLY APPLY TO ANY OF SELLER AND OUR ACTIVITIES UNDER THIS AGREEMENT. ONCE SELLER AGREES TO THIS AGREEMENT LOCATED AT (WWW.BUYGOWN.CO/NYPCA), IT WILL REMAIN IN EFFECT AND GOVERN ALL TRANSACTIONS BETWEEN SELLER AND BUY GOWN UNTIL SELLER OR BUY GOWN TERMINATE IT PURSUANT TO CLAUSE 4 OF THIS AGREEMENT.
PLEASE READ THIS AGREEMENT CAREFULLY. THE TERMS AND CONDITIONS IN THIS NEW YORKER SALES PACKAGE AGREEMENT (THE “AGREEMENT”) CREATE A CONTRACT BETWEEN SELLER (“SELLER” OR “YOU”) AND BUY GOWN INC. (“BUY GOWN”, “US” OR “OUR”) collectively referred to as the "Parties."
1. DEFINITIONS
1.1 Seller: The individual or entity who owns the Item(s) and is consigning them to the BUY GOWN for sale.
1.2 BUY GOWN: BUY GOWN Inc., a New York corporation, that agrees to sell the Seller's Item(s) on their behalf.
1.3 Buyer: The individual or entity who purchases the Item(s) from the BUY GOWN.
1.4 Sale: A Sale is defined as the date when the BUY GOWN receives 100% payment from a Buyer.
1.5 Item(s) Evaluation Report: A document provided by the BUY GOWN detailing the condition, authenticity, and description of the consigned Item(s).
1.6 Verified Listings: Listings on the BUY GOWN’s platform that have been inspected and confirmed for condition and authenticity.
1.7 Business Day: Any day other than a Saturday, Sunday, or a legal holiday in the State of New York.
1.8 Parties: The Seller and the BUY GOWN may be referred to collectively as the "Parties."
1.9 Commission: Amount to be paid by BUY GOWN to Seller.
1.10 Net Selling Price: The price at which a Consigned Item(s) is Sold, less applicable discounts and promotions, and excluding taxes and shipping.
1.11 Pre-loved Item(s): An Item(s) that has been previously owned or worn, but remains in good to excellent condition suitable for resale
1.11 Clause: Any Clause of the present Agreement
2. ELIGIBLE ITEM(S)
2.1 Branded new or pre-loved wedding and evening gowns with a retail price of $1,500 or more.
2.2 Branded new or pre-loved children's dresses with a retail price of $1,000 or more.
2.3 Branded new or pre-loved bridal capes with a retail price of $1,000 or more.
2.4 Branded custom-made gowns by emerging designers with a retail price of $1,500 or more.
3. DESCRIPTION OF CONSIGNED ITEM(S)
3.1 The Seller agrees to consign the Item(s) for sale as per Appendix 1 to this Agreement. The Seller warrants that they have full legal ownership of the Consigned Item(s) and the right to consign them to the BUY GOWN.
4. TERMS AND TERMINATION
4.1 This Agreement shall commence on the date first above written and continue until terminated by either party with thirty (30) days' prior written notice.
4.2 The BUY GOWN may terminate this Agreement without providing any explanation in the event of a breach by the Seller, non-compliance with terms, Seller’s misbehavior, or if the BUY GOWN determines that the Item(s) do not meet the required standards. Termination will be effective on the date of such notice.
4.3 Upon termination, the BUY GOWN shall return any unsold Item(s) to the Seller within fourteen (14) days. All outstanding payments for sales proceeds, transaction fees, refunds, storage or handling fees, and inspection fees shall be settled by the Parties.
4.4 The BUY GOWN reserves the right to accept or reject any Item(s) for any reason.
5. RESPONSIBILITIES OF THE PARTIES
5.1 Seller Duties:
5.1.1 Ensure Item(s) are authentic and provide accurate descriptions.
5.1.2 Maintain ownership rights until the Item(s) are sold.
5.1.3 Pay a non-refundable fee of $65 for the New Yorker Package at the time of listing submission.
5.1.4 Retain possession of the Item(s) until they are sold and ensure they remain in the same condition.
5.1.5 Deliver the Item(s) to a BUY GOWN drop-off location after submitting an online application with pictures of the Item(s).
5.1.6 Ship or deliver sold Item(s) to the BUY GOWN within three (3) business days after receiving written sales notice from the BUY GOWN. Item(s) must be in the same condition as presented to the BUY GOWN for evaluation.
5.1.7 If the Seller decides not to sell the Item(s) or if the Item(s) are damaged, not in possession of the Seller (sold, lost, etc.), or for any other reason when the Seller is unable to provide the Item(s) to the BUY GOWN, the Seller must immediately inform the BUY GOWN.
5.1.8 Make efforts to provide all available original purchase receipts, labels, and packaging of the Item(s).
5.1.9 The Seller shall be obligated to pay the BUY GOWN twenty-five percent (25%) of the Net Selling Price as described in clause 1.10 of this Agreement.
5.1.10 Provide full and correct contact and payment information, including name, address, phone number, email, payment account details.
5.1.11 Respond and communicate with BUY GOWN in a timely manner.
5.1.12 Seller agrees to accept the listings created by BUY GOWN at its sole discretion, including photos, videos, descriptions, and pricing, and acknowledges that the BUY GOWN will promote the Item(s) on social media platforms.
5.1.13 Seller agrees to promptly deliver the Item(s) to the BUY GOWN if a Buyer requests a video call to view the Item(s). The BUY GOWN will then facilitate the video call with the Buyer to showcase the Item(s). This ensures that the Item(s) is accurately represented and meets the Buyer’s expectations.
5.2 BUY GOWN Duties:
5.2.1 Store, market, and sell the Item(s) through designated channels.
5.2.2 Provide regular updates to the Seller on the sale status of their Item(s).
5.2.3 Handle customer interactions and transactions.
5.2.4 Create listings at BUY GOWN's sole discretion, including photos, videos, descriptions, and pricing, and promote the Item(s) on social media platforms as deemed appropriate by the BUY GOWN.
5.2.5 Inspect the Item(s) upon receipt to ensure they meet the description, condition, and authenticity before listing them under "Verified" listings.
5.2.6 Respond and communicate with Seller in a timely manner.
5.2.7 Provide its services and keep the Item(s) listed as long as Seller is in full compliance with this Agreement.
6. CONDITION OF CONSIGNED ITEM(S)
6.1 All Item(s) shall be in one of the following conditions (in pristine condition: absolutely neat, clean, with functioning zippers (if applicable), and free from any damage or odors)
6.1.1 Brand new with tags.
6.1.2 Brand new without tags.
6.1.3 Pre-loved in perfect condition.
6.1.4 Pre-loved in medium condition.
6.2 The condition of the consigned Item(s) shall be assessed by the BUY GOWN either in the presence of the Seller or independently.
6.2.1 If the Seller chooses to be present, the condition will be agreed upon immediately and documented in an Item(s) Evaluation Report provided by the BUY GOWN. If the BUY GOWN decides to consign the Item(s), they fully agree with the Item(s) Evaluation Report.
6.2.2 If the Seller is not present during the evaluation, the BUY GOWN will prepare the Item(s) Evaluation Report within three (3) business days after physically receiving the Item(s). The Seller agrees not to make any claims against the BUY GOWN regarding the condition of the item as described in the Evaluation Report.
7. PRICING AND PAYMENT
7.1 Unless Parties have agreed otherwise in writing to a specific price at which a specific Item(s) must be Sold, the BUY GOWN, in its sole discretion, will determine the initial selling price for each Consigned Item(s) (the “Initial Sale Price”) based on BUY GOWN’s evaluation and determination of the current re-sale market price for that Item(s). The original manufacturer’s suggested retail price of an Item(s), while sometimes listed on the Item(s) product description page by BUY GOWN, is used as a reference only.
7.2 In order to market and promote the sale of each Consigned Item(s), the BUY GOWN may, in its sole discretion, apply a 20% discount effective immediately to the Consigned Item(s), which will affect its Initial Sale Price, unless Parties have otherwise agreed in writing that such discount is not permitted, or if Parties have agreed that a discount is permitted only with Seller’s prior written consent.
7.3 BUY GOWN may offer additional discounts and promotions to Buyers, which are effective immediately at BUY GOWN’s sole discretion and without notice to Seller, to efficiently market and sell the Consigned Item(s), unless Parties have otherwise agreed in writing that further discounts are not permitted or that such discounts are permitted only with Seller’s prior written consent.
7.4 The Seller will receive comission of seventy-five percent (75%) of the Net Selling Price the Item(s) was listed and sold for on https://www.buygown.co, less any applicable transaction fees. For example, if the Item(s) is sold by BUY GOWN for $1,000, Seller receives $750.
7.5 Payments will be made to the Seller within thirty (30) business days after the Item(s) is sold.
7.6 In case of disputes regarding payouts, the BUY GOWN will hold the disputed amount in escrow until the dispute is resolved.
7.7 Payment methods include Zelle, Venmo, PayPal, and Cash App.
7.8 If there is a dispute between Parties relating to Consigned Item(s), BUY GOWN will have no obligation to pay any Commissions or other amounts due to BUY GOWN, including, without limitation, amounts unrelated to the dispute, unless and until the dispute is resolved. BUY GOWN may withhold any Commissions due to Seller (including any due for Sold Consigned Item(s) not subject to the dispute) and setoff such Commissions in full or partial satisfaction of any amounts Seller owes to BUY GOWN.
7.9 If the Seller sells their Item(s) directly or via third parties using any link or reference to marketing materials made and distributed by the BUY GOWN or any video, photo, or description of the Item(s) made by the BUY GOWN while this Agreement is in force, the Seller shall pay to BUY GOWN 25% of the Net Selling Price as described in Clause 7.4 regardless of the actual price the Item(s) was sold by Seller within fourteen (14) business days after sale.
7.10 If the Seller hides the fact of the sale or does not pay the BUY GOWN 25% of the Net Selling Price within the specified fourteen (14) business days, the Seller shall be obligated to pay a one-time fine of $3,000 to the BUY GOWN, plus an additional $50 for each day the payment is late as specified in Clause the 7.9
7.11 The BUY GOWN has the right to make an offer to purchase any consigned Item(s) directly from the Seller at any time while this Agreement is in force or not. If the Seller agrees to sell the Item(s) to the BUY GOWN, the BUY GOWN will make the payment to the Seller. Upon receipt of the payment, the Item(s) immediately becomes the property of the BUY GOWN, and Seller agrees to relinquish all right, title, and interest to the Item(s). BUY GOWN is no longer obligated to inform the Seller of any information related to the Item(s).
8. DELIVERY AND COSTS
8.1 The Seller may deliver the Consigned Item(s) to a BUY GOWN drop-off location or have them shipped to BUY GOWN.
8.2 Seller shall pick up Consigned Item(s) within three (3) business days after notice from the BUY GOWN.
8.3 After the sale, the Seller must deliver the sold Item(s) to BUY GOWN drop-off location or have it shipped within three (3) business days for final inspection and sale by the BUY GOWN.
8.4 The BUY GOWN shall cover the costs of ground shipment for returning any unsold Item(s).
9. RISK OF LOSS AND INSURANCE
9.1 BUY GOWN accepts the risk of loss or damage to Consigned Item(s) only in the following circumstances:
9.1.1 When BUY GOWN takes physical possession of the Consigned Item(s).
9.1.2 Seller uses only BUY GOWN’s approved, pre-paid shipping label and approved method of shipment to ship Consigned Item(s) and the label is processed into BUY GOWN-approved shipping vendor’s tracking.
9.1.3 If an Item(s) of Consigned Item(s) is damaged, stolen, or lost while in BUY GOWN’s possession or during Approved Transit, it will be treated as Sold (as defined in Clause 1.4 of this Agreement). In this case, the BUY GOWN will pay Seller a Commission (as defined in Clause 7 of this Agreement). This payment represents the amount Seller would have received in the normal course of a sale, less any discounts or promotions applied under this Agreement.
9.1.4 Any claim by Seller for a damaged, stolen, or lost Item(s) must be made to BUY GOWN in writing within fifteen (15) days of the day that Seller became aware or should have reasonably become aware of the alleged damage, theft, or loss. In the case of a damaged Item(s), BUY GOWN may have minor damage to an Item(s) repaired by a certified repair service within a commercially reasonable amount of time and re-list the Item(s) for sale by Seller at a price BUY GOWN determines.
9.1.5 The Seller is responsible for providing accurate information for insurance purposes.
10. SELLER’S REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
Seller hereby represents and warrants that:
10.1 Seller is at least 18 years of age.
10.2 Consigned Item(s) are authentic, free from any liens or encumbrances, and meet the conditions specified in this Agreement.
10.3 No Consigned Item(s) are counterfeit goods.
10.4 No Consigned Item(s) infringe upon, misappropriate, or violate any trademark, copyright, or other intellectual property or other proprietary right of any third party, any state or federal law, or any administrative regulation.
10.5 No Consigned Item(s) is from, or the result of, illegal activity, including theft or fraud.
10.6 No transaction initiated by Seller will cause BUY GOWN to be in violation of any anti-money laundering, anti-terrorism, or other applicable state or federal law of the United States of America, any state, or any foreign country.
10.7 Seller will indemnify and hold BUY GOWN harmless from all damages, suits, litigation, awards, and costs, including but not limited to reasonable attorneys’ fees and costs, incurred by BUY GOWN as a result of or arising in any way out of BUY GOWN’s display or sale of the Consigned Item(s), including but not limited to, civil or criminal suits over authenticity or ownership of the Consigned Item(s), legality of sales, or copyright or trademark infringement.
11. INSPECTION AND FINAL SALE PROCESS
11.1 Upon sale, the BUY GOWN will conduct a final inspection of the Item(s) to ensure it meets the description, condition, and authenticity (Authenticity Verification Procedure is available at https://www.buygown.co/authenticity). If the Item(s) passes inspection, it will be professionally packed and shipped to the Buyer within three (3) business days.
11.2 If the inspection cannot verify the authenticity or if the Item(s) does not match the listing description, the Item(s) will be returned to the Seller within seven (7) business days, and the Buyer will receive a refund. The $65 fee remains non-refundable.
11.3 If a product does not comply with the description, the BUY GOWN may negotiate a discount with the Buyer and Seller or cancel the order.
12. ACCOUNT SUSPENSION
12.1 The BUY GOWN reserves the right to suspend the Seller's account if two or more Item(s) listed by the Seller do not meet the description, if their authenticity cannot be established, or if the Seller does not provide the BUY GOWN with the sold Item(s) within 3 days as described in Clause 5.1.6 Seller Duties.
13. NO ASSIGNMENT
13.1 Seller may not assign this Agreement or any interest Seller has in it without BUY GOWN’s prior written consent. Any prohibited assignment is null and void. This Agreement will inure to the benefit of, and is intended to be enforceable by, the parties and their respective successors and assigns.
14. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
14.1 Seller EXPRESSLY UNDERSTANDS AND AGREES THAT:
14.1.1 Seller’S USE OF BUY GOWN’S SERVICES IS AT Seller’S SOLE RISK. BUY GOWN’S SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BUY GOWN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
14.1.2 BUY GOWN MAKES NO WARRANTY THAT (A) BUY GOWN’S SERVICES WILL MEET Seller’S REQUIREMENTS OR (B) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT Seller OBTAINS FROM BUY GOWN OR THROUGH OR FROM BUY GOWN’S WEBSITE OR BUY GOWN’S SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
14.1.3 BUY GOWN AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL NOT BE LIABLE TO Seller FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR FOR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR FOR OTHER INTANGIBLE LOSSES (EVEN IF BUY GOWN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE OUR SERVICES OR BUY GOWN’S WEBSITE; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF Seller’S TRANSMISSIONS OR DATA; (C) THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT; OR (D) ANY OTHER MATTER RELATING TO BUY GOWN’S SERVICES OR THIS AGREEMENT.
14.1.4 IN NO EVENT WILL BUY GOWN’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT BUY GOWN HAS ACTUALLY RECEIVED OR PAID AS A RESULT OF SELLING OR PURCHASING Seller’S Item(s) HEREUNDER.
14.2 THE FOREGOING DISCLAIMERS AND LIMITATIONS ARE A FUNDAMENTAL PART OF THE BASIS OF BUY GOWN’S BUSINESS, AND BUY GOWN WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMERS AND LIMITATIONS. PLEASE SEEK THE ADVICE OF APPROPRIATE PROFESSIONALS REGARDING THE TERMS OF THE AGREEMENT AND THE EVALUATION OF ANY SPECIFIC OPINION, ADVISE, PRODUCT, SERVICE OR OTHER CONTENT.
15. GOVERNING LAW
15.1 This Agreement, or the breach thereof, and all claims of any kind relating to or arising out of this Agreement and the relationship between the Parties, whether tort, contract, or statutory, will be governed exclusively by the laws of the State of New York, without regard to its conflicts of laws principles (whether of New York or any other jurisdiction).
15.2 Any dispute between the Parties that is not subject to arbitration or cannot be heard in small claims court will be resolved exclusively in the state or federal courts of New York and the United States, respectively, sitting in Kings County, New York City.
15.3 The United Nations Convention on Contracts for the International Sale of Goods will not in any way apply to this Agreement or any sales or consignments made under this Agreement.
16. AMENDMENTS TO THIS AGREEMENT
16.1 BUY GOWN may update or change any of the terms and conditions of this Agreement at any time in BUY GOWN's sole discretion upon thirty (30) days’ notice, except as set forth above in “Pricing and Payment” at Clauses 7.2 and 7.3 of this Agreement, which provides that discounts and promotion rates may be changed by BUY GOWN at any time and without notice to Seller and that such change is effective immediately.
16.2 Seller will be bound by all revised terms on the effective date, including any changes to the Commissions, or Discounts and Commission Rates, unless Seller terminates this Agreement before the effective date of the revised terms. If Seller does not agree to any revised terms, Seller’s sole recourse is to terminate this Agreement in accordance with “Terms and Termination” at Clause 4 of this Agreement before the effective date of the revised terms.
17. ENTIRE AGREEMENT
17.1 This Agreement, including our TERMS OF SERVICE (available at www.buygown.co/terms) and any terms, policies, or documents incorporated by reference, sets forth the final, complete, and exclusive agreement between the Parties regarding the subject matter hereof and terminates and supersedes all prior understandings or agreements on such subject matter. Except as expressly set forth in “Amendments to this Agreement” at Clause 16 of this Agreement, this Agreement may be modified only by a writing signed by the Parties. In the event there is a conflict between the terms of this Agreement and any terms or documents incorporated by reference, this Agreement will control.
18. NO IMPLIED WAIVER
18.1 Any failure by Seller or BUY GOWN to enforce any provision of this Agreement will not constitute a waiver of such provision or of any other provision of this Agreement.
19. SEVERABILITY
19.1 If any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement will remain valid and enforceable as though such term were absent upon the date of the execution of this Agreement.
20. SURVIVAL OF TERMS AFTER AGREEMENT ENDS
20.1 Notwithstanding any other provision of this Agreement, any provision of this Agreement that imposes or contemplates continuing obligations of the Parties will survive the termination of this Agreement.
21.1 Headings used in this Agreement are provided for convenience only and will not be used to construe meaning or intent.
22. NOTICES
22.1 All notices under this Agreement must be in writing (which includes emails). If Seller has any questions or comments about this Agreement, the Service, or wishes to terminate this Agreement, please contact BUY GOWN by: Email at: info@buygown.co. Seller also may mail to: BUY GOWN Inc., 2305 Coney Island Ave, Suite 2D, 2nd Floor, Brooklyn, New York 11223
22.2 BUY GOWN will provide all notices to Seller at the email address or physical address that Seller has provided to BUY GOWN. Seller is solely responsible for keeping that information current and accurate.
22.3 All agreements, notices, disclosures, and other communications that BUY GOWN provides electronically to Seller satisfy any legal requirement that such communications be in writing.
23. DISPUTE RESOLUTION
SELLER MUST READ THIS ARBITRATION SECTION CAREFULLY TO UNDERSTAND SELLER’S RIGHTS, BECAUSE IT REQUIRES SELLER TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH BUY GOWN AND LIMITS THE MANNER IN WHICH SELLER CAN SEEK RELIEF FROM US.
23.1 For all matters, disputes, or claims between the Parties arising from or related to this Agreement or Seller’s relationship with BUY GOWN, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including any dispute about the interpretation or application of this dispute resolution provision or the enforceability, revocability, or validity of this arbitration provision or any portion of the arbitration provision (“Disputes”), will be resolved by the processes and procedures described in this Clause 23, first amicably and then through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
THE PARTIES WAIVE SELLER’S RIGHTS TO A JURY TRIAL AND TO HAVE ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES RESOLVED IN COURT.
23.2 In the event of a Dispute, the Parties will first negotiate in good faith to informally resolve the Dispute. Seller may notify BUY GOWN of a Dispute by emailing BUY GOWN at info@buygown.co. The notice must specifically describe the nature of the Dispute and the relief Seller seeks. The Parties will have ninety (90) days from the date of receipt of such a notice to try to resolve the Dispute (or such longer period as the Parties may agree upon in writing). If the Dispute is not resolved satisfactorily within ninety (90) days after Seller or BUY GOWN receive notice from the other party in accordance with “Notices” at Clause 22 of this Agreement, Seller or BUY GOWN can submit the Dispute to binding arbitration in accordance with the arbitration provisions as set in Clause 23.3 below.
23.3 Except for any controversy or claim properly filed and pursued in small claims court on an individual basis (as explained in Clause 23.4 of this Agreement), any Dispute that remains unresolved after the Parties attempt to resolve it informally will be resolved by binding arbitration brought on an individual basis, in which case either Seller or the BUY GOWN may commence confidential binding arbitration under the terms in this Clause 23.3. The arbitration will be administered by Judicial Arbitration and Mediation Services, Inc. (JAMS) under the American Arbitration Association (AAA) Consumer Arbitration Rules (available online at www.adr.org or by calling 1-800-778-7879), as amended by this Agreement. The place of arbitration will be in New York, NY, United States of America. The arbitration will be conducted by a single arbitrator, selected by JAMS in accordance with the applicable Consumer Arbitration Rules. The arbitration may be held by teleconference or by video conference unless the arbitrator determines upon request by Seller or by BUY GOWN that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel, the expense, and other pertinent circumstances. If the parties are unable to agree on a location, such determination shall be made by the arbitrator. The arbitrator’s decision(s) shall be final and binding. The arbitrator shall have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. Any award of the arbitrator may be entered as a judgment in any court having jurisdiction.
23.4 If Seller entered into this Agreement individually, Seller has the choice to submit any Dispute before a small claims court, if applicable, instead of having the Dispute resolved by arbitration. Seller can make this choice either before or after the Dispute is submitted for resolution by arbitration.
23.5 BY ENTERING INTO THIS ARBITRATION AGREEMENT, SELLER IS WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, CLASS ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT PERMITTED, AND Seller IS AGREEING TO GIVE UP AND WAIVE THE ABILITY TO PARTICIPATE IN A CLASS ACTION. COMBINING INDIVIDUAL PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES IS ALSO NOT ALLOWED. DISPUTES REGARDING THE ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THE FOREGOING CLASS ACTION WAIVER SHALL BE EXCLUSIVELY RESOLVED BY AN ARBITRATOR APPOINTED BY THE AAA, PURSUANT TO THE APPLICABLE ARBITRATION RULES, AS DETAILED IN THIS CLAUSE 23.
23.6 Should any portion of this Clause 23 be deemed unenforceable by the arbitrator or a court of competent jurisdiction, the unenforceable portion will be severed without affecting the remainder of this Clause 23, which will remain in full force and effect. If the severance of any portion of Clause 23 results in any claims proceeding on a class or representative basis, those claims will be litigated in court and not in arbitration; the parties agree to stay any litigation of those claims pending the outcome of any individual claims in arbitration.
24.1 Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, acts of God, acts of government, epidemics, pandemics, public health crises, and interruptions, loss, or malfunctions of utilities, communications, or computer (software and hardware) or phone services.
24.2 In addition to the above, the BUY GOWN shall not be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure results from unforeseen circumstances or causes beyond its reasonable control, including, but not limited to, delays or failures caused by transportation issues, supply chain disruptions, labor shortages, or interruptions, changes in laws or regulations, actions by governmental authorities, or the failure of Seller to comply with its obligations under this Agreement.
24.3 In the event that a force majeure event prevents either party from performing its obligations under this Agreement for a continuous period of more than sixty (60) days, either party may terminate this Agreement by providing written notice to the other party. Such termination shall be without prejudice to the rights and obligations of the Parties accruing up to the date of termination.
24.4 The BUY GOWN shall not be obligated to refund any fees or payments made by Seller prior to the force majeure event. The BUY GOWN shall use commercially reasonable efforts to resume performance as soon as practicable after the force majeure event has abated.
25. MISCELLANEOUS PROVISIONS
25.1 Seller agrees that no joint venture, partnership, employment, or agency relationship exists between the Parties as a result of this Agreement or Seller’s access to and use of the Service. Except as otherwise expressly provided in this Agreement, there will be no third-party beneficiaries to this Agreement.