Welcome to www.macandmia.com (the “Site”), a website operated by Mac & Mia, Inc. (“Mac & Mia”, “we”, “us”, or “our”). Mac & Mia offers a styling service that gives you access to children’s clothing and accessories (“Products”) from the best up-and-coming labels and brands and a number of related services (collectively, the “Services”). Here’s how it works: you provide your Style Profile. We then select a number of products for your child and ship it to you. You won’t know what’s in the box until you open – and that’s part of the excitement. Read on for more details.
TYPES OF USERS.
You may simply browse the Site as a “Visitor” or you may create an account (“Account”) and register with us to become a “Customer”. You must be a Customer to request a shipment.
Shipments and Returns
From time to time, we will send you an email offering you a Shipment. When you choose to receive a Shipment, we will send you some Products chosen by Mac & Mia. You will be able to try them on in your own home and see what you like. You can decide to keep all, some or none of the Products in your Shipment, and we will bill you for the ones you keep as described in Section 4 below.
If you want to return any of the Products in your Shipment, simply place them in the return package we provide and mail them back to us at no cost to you. Any retuned products must be postmarked no later than the five (5) days after you receive the package (the “Return Date”). We will assume that you have chosen to keep any Products in the Shipment that you do not postmark back to us one week following the Return Date, and we will charge your Account for those Products anytime after that day. Any exceptions permitting a return postmarked longer than one week after the Return Date must be requested in a timely manner and may be granted at the sole discretion of Mac & Mia. Products must be returned unworn and in the original condition.
OUR SCHEDULING OF A SHIPMENT IS AN OFFER TO PURCHASE THE PRODUCT(S) IN THE SHIPMENT, WHICH YOU MAY RETRACT BY RETURNING THE PRODUCTS YOU DON’T WANT AS DESCRIBED ABOVE. For any reason, we may decline to accept your request for a Shipment. If we decline to accept your request for a Shipment, we will attempt to notify you at the email address you provided. All Products shall be deemed accepted by you upon shipment, and title to and risk of loss passes to you when we provide the Product(s) to a common carrier.
STYLING FEE AND PAYMENT
When we send you a shipment, we will charge you a non-refundable "Styling Fee" in the amount set forth on the Services. The Styling Fee will be charged to your credit card or other payment method between the time the order is placed and we ship your shipment. Within five (5) business days of receiving your shipment, we request that you return any Products you don't want. If you choose to keep two (2) or more Products from your shipment, the Styling Fee will be credited towards the purchase price of those Products. To pay for an order, you will need to provide Mac & Mia with the information necessary to process an order from you, including your shipping address and the billing information. You may pay for the Styling Fee and any Products from your order via credit card or other payment method then available on the Services. If you have a credit in your Account at the time of purchasing Products, the credit will be applied before charging your credit card or other payment method then available. Credits cannot be applied to the Styling Fee. By submitting your payment information to us, you authorize us to charge your credit card or other payment method then available in accordance with this policy. If you receive boxes automatically, you agree to the Styling Fee being charged to the card on file on a recurring basis according to the frequency you selected as right for you until you cancel the subscription or automatic boxes by (i) logging in and editing the information on your Mac & Mia account (ii) by emailing us at to email@example.com stating "I want to stop receiving automatic boxes" from the email address then currently associated with your account. You may cancel automatic boxes at any time at least eleven (11) days notice before the next 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, PayPal account, or other means of payment 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.
PRICING AND PRODUCTS.
Mac & Mia does not disclose the prices of its Products until you receive a Shipment. Don’t worry though – if you don’t like it, just send it back in accordance with Section 3. Please remember that you are responsible for paying the price of any and all Products in your Shipment, whether they conform to your Style Profile or not, unless you return the Products by the Return Date. You are responsible for the payment of any state and local sales or use taxes that may apply to your Order. The manufacturer of each Product, and not Mac & Mia, is responsible for the quality and any warranty of any of its Products shipped or purchased from Mac & Mia. If you have any problems with an Order, you should first contact Mac & Mia by email at firstname.lastname@example.org and we will put you in touch with the right person to handle it.
OWNERSHIP OF INTELLECTUAL PROPERTY.
GENERAL RULES OF USER CONDUCT.
It is our goal to make access to our Site and Services a good experience for all of our Users. You agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
RIGHT TO SUSPEND.
Mac & Mia reserves the right, in its discretion, to suspend your Account, your use of the Services or the sending of Shipments at any time at our discretion including, without limitation, as necessary in Mac & Mia’s discretion to protect the security or operation of the Site or Services.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to Products, the Site, or the Services (collectively “Feedback”), you agree we may use the Feedback to modify our Site and Services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
MODIFICATIONS TO THE SITE OR SERVICES.
We reserve the right to modify or discontinue the Site or Services (including Shipments) with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
Third Party Content and Other Websites.
DISCLAIMER OF WARRANTIES.
LIMITATION OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO COLLECT PAYMENT, FACILITATE THE FULFILLMENT OF ORDERS, AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PRODUCTS OR FOR ANY INFORMATION APPEARING ON ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (i) THE TOTAL AMOUNT OF YOUR ORDERS IN THE THREE (3) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO OUR LIABILITY, AND (ii) TEN DOLLARS (U.S. $10.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
You hereby release Mac & Mia, its officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Site or Services; or (ii) your purchase of any Shipments or Product(s). You hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor" and you waive any other similar provision of the laws of any other applicable jurisdiction.
We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following information: An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; A description of the copyrighted work that you claim has been infringed; A description of where the material that you claim is infringing is located on the Site or Services; Your address, telephone number, and email address; A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our copyright agent for notice of claims of copyright infringement on the Site or the Services can be reached by email at email@example.com
ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Mac & Mia must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to -face hearing is appropriate, in which case one should be held at a location agreed to by you and Mac & Mia, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR Mac & Mia MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e ) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Mac & Mia will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) Mac & Mia also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or Mac & Mia shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Mac & Mia customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.
With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Mac & Mia shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and Mac & Mia shall be exclusively brought in the state or federal courts specified in subsection “(d)” above.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Last Updated: July 1, 2014