Terms of SaleUpdated 4 months ago
1. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS UNLESS YOU OPT OUT.
BY PLACING AN ORDER FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH ONE SOURCE TO MARKET, LLC OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (these "Terms") apply to the purchase and sale of products and services through the Ekster website (the "Site"). These Terms are subject to change by Ekster Inc. (referred to as "Ekster," "us," "we," or "our" as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms before purchasing any product or services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
2. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between Ekster and you will not take place unless and until you have received your order confirmation email.
3. Prices and Payment Terms.
(a) All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
(b) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, MasterCard, American Express, Discover, PayPal, Amazon Pay, and Affirm for all purchases. You represent and warrant that (i) the payment information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such payment method for the purchase, (iii) charges incurred by you will be honored by your credit card company or bank, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
4. Shipments; Delivery; Title and Risk of Loss.
(a) We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process.
(b) Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
5. Returns and Refunds
Except for any products designated on the Site as non-returnable, and except for any orders less than $50 in value, we will accept a return of the products for a refund of your purchase price, less the original shipping and handling costs, provided such return is made within 100 days of purchase and provided such products are returned in their original condition, with all parts and accessories. For orders less than $50 in value, we will provide store credit or an exchange. After 100 days, we will replace defective items for products covered by a warranty pursuant to the terms of such warranty policy. To initiate a return, follow the instructions on our Return Portal.
If you live outside the U.S., Canada, and the United Kingdom, you are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.
Refunds are processed within approximately 5-10 business days of our receipt of your merchandise, but we do not guarantee that refunds will be processed within this time period. Your refund will be credited back to the same payment method used to make the original purchase on the Site. Large items such as backpacks carry a shipping fee of $15 that will be deducted from your refund. Items that do not meet our requirements for returns may still be accepted for return in our sole and absolute discretion and may carry a restocking fee. We offer no refunds on any products designated on the Site as non-returnable.
6. Limited Warranty; Disclaimer of Warranties.
Certain of our products are covered by a limited warranty, as described in the Limited Product Warranty Program here, or if you enroll in the ekster+ loyalty program, by a limited warranty as described in the ekster+ Limited Lifetime Warranty here (together, the Ekster Limited Product Warranties). Third-party products are not covered by the Ekster Limited Product Warranties.
EXCEPT AS MAY EXPRESSLY BE STATED IN THE EKSTER LIMITED PRODUCT WARRANTIES WITH RESPECT TO AN APPLICABLE PRODUCT PURCHASED FROM US, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EKSTER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES WITH RESPECT TO OUR PRODUCTS AND SERVICES. ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EKSTER EXPRESSLY DISCLAIMS ALL LIABILITY FOR CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION OR MISAPPROPRIATION. EXCEPT AS MAY EXPRESSLY BE STATED IN OUR U.S. LIMITED PRODUCT WARRANTY PROGRAM WITH RESPECT TO AN APPLICABLE PRODUCT PURCHASED FROM US, EKSTER MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY- FEDERAL TRADE COMMISSION IMPROVEMENT ACT. YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE HANDLING, STORAGE, AND USE OF THE PRODUCTS. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS OR YOUR USE OF THE SERVICES.
7. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PRODUCTS AND SERVICES REMAINS WITH YOU. TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EKSTER OR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PRODUCTS, OR ANY OF EKSTER OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, OR REPRESENTATIVES (COLLECTIVELY, “REPRESENTATIVES”) BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES, WHETHER OR NOT EKSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD-PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. IN ANY EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EKSTER AND ITS REPRESENTATIVES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES OR PRODUCTS WILL NOT EXCEED THE AMOUNT PAID FOR THE SPECIFIC PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PAID PRODUCT OR SERVICE, $100. THE FOREGOING LIMITATIONS ARE FUNDAMENTAL AND MATERIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EKSTER AND YOU AND WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. THE FOREGOING SHALL CONSTITUTE EKSTER’S SOLE LIABILITY AND OBLIGATION, REGARDLESS OF THE FORM OF ACTION.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages. Accordingly, some of these limitations may not apply to you. If you are located in New Jersey, the limitations in this Section do not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or condition or guarantee or limit liabilities, the scope and duration of such warranty or condition or guarantee and the extent of our liability will be the minimum permitted under such applicable law.
8. Goods Not for Resale or Export.
You represent and warrant that you are buying products or services from the Site for your own personal or household use only, and not for resale or export. You agree to comply with all applicable laws and regulations of any state and of the United States with respect to these products or services.
9. Privacy.
Our Privacy Policy, https://support.ekster.com/en-US/privacy-statement-213269, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Site.
10. Force Majeure.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
11. Governing Law and Jurisdiction.
All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
12. Dispute Resolution and Binding Arbitration.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
(a) Application. You and Ekster agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 12 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including your purchase and use of any product or services; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
(b) Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. Before taking any formal action, you will contact us at ATTN: 228 East 45th Street Suite 9E, New York, NY 10017, United States of America with a copy to [email protected], and provide your name, a brief, written description of the dispute, your contact information and a description of the specific relief you seek. Before we take any formal action against you, we will notify you via the contact information we have on file associated with your account/purchase with a brief description of the dispute and next steps. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
(c) Binding arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in Section 12(h)) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach) shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
(d) Arbitrator’s powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator’s award shall be written and shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
(e) Filing a Demand. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) contact JAMS and follow the appropriate procedures with JAMS to commence the arbitration (c) send one copy of the Demand for Arbitration to us at: ATTN: 228 East 45th Street Suite 9E, New York, NY 10017, United States of America with a copy to [email protected].
Payment of all filing, administration, and arbitrator fees will be governed by JAMS’ applicable consumer rules. The parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Arbitration shall be initiated in the New York, New York, United States, and you and Ekster agree to submit to the personal jurisdiction of any federal or state court in the such location, with such federal or state court applying the laws of the State of New York, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
(f) Waiver of Class or Non-Individualized Relief. BY ENTERING INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU AND EKSTER ARE EACH WAIVING THE RIGHT TO BRING, JOIN, OR PARTICIPATE IN, EITHER AS A PLAINTIFF OR CLASS MEMBER, IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION OR PROCEEDING. YOU ALSO ACKNOWLEDGE AND AGREE THAT, UNLESS YOU AND EKSTER OTHERWISE AGREE IN WRITING, ANY ARBITRATION OF ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. YOU FURTHER ACKNOWLEDGE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN YOUR FAVOR AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY YOUR INDIVIDUAL CLAIM(S), AND ANY RELIEF AWARDED CANNOT AFFECT OTHER EKSTER CUSTOMERS. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ARBITRATION. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim for relief, and only that claim for relief, must be severed from the arbitration and brought into the state or federal courts located in New York County, New York. All other claims shall be arbitrated.
(g) Waiver of Jury Trial. BY ENTERING INTO THESE TERMS, YOU AND ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIMS(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU AND EKSTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
(h) Exception: Litigation of intellectual property and small claims court claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may seek injunctive or other equitable relief or bring enforcement actions, validity determinations or claims arising from or relating to the unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
(i) 30-day right to opt out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT OUT” and your first and last name and email address associated with your account and stating your intent to opt-out. The notice must be sent within thirty (30) days of (a) the effective date of these Terms; or (b) your first date that you used the Services that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Ekster also will not be bound by them.
(j) Changes to this Section. If we make any material changes to this Section 12, you may reject any such change by sending us written notice within 30 days of the change to the contact information set forth in Section 12(i). It is not necessary to send us a rejection of a future change to the Arbitration and Class Action Waiver section of these Terms if you had properly opted out of this Section within the first 30 days after you first accepted these Terms. If you have not properly opted out of this Section after such first 30 days, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject. This notification affects these Terms only; if you previously entered into other arbitration agreements with us or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and us.
(k) Severance of Arbitration Agreement. If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement.
(l) Survival. This Section shall survive any termination of the Terms or of your use of the Services. This Arbitration Agreement will continue to apply even if you or we close your Ekster account.
(m) Federal and State Courts in New York. Except to the extent that arbitration is required, and except as to the enforcement of any arbitration decision or award or with respect to excluded claims set forth in Section 12(h), any action or proceeding may only be instituted in state or federal court in New York County, New York. Accordingly, you and Ekster consent to the exclusive personal jurisdiction and venue of such courts for such matters.
13. Assignment.
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this 13 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
14. No Waivers.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Ekster.
15. No Third-Party Beneficiaries.
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
16. Notices.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under these Terms, you must contact us by personal delivery, overnight courier, or registered or certified mail to ATTN: 228 East 45th Street Suite 9E, New York, NY 10017, United States of America. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
17. Severability.
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
18. Entire Agreement.
Our order confirmation, these Terms, our Website Terms of Use and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.
Updated: Nov 2023.