Terms of Service

OVERVIEW

These terms and conditions (the "Terms", “Terms of Service”, or “Agreement”) apply to the purchase and sale of products and services through www.nyasize.com (the "Website"). The following Terms are a legally binding agreement between each user (“user”, “you”, or “your”) and Not Your Average Size, LLC ("NYAS," "we," or "us").

This document contains important information regarding your rights and obligations, as well as conditions, limitations, and exclusions that might apply to you. Please read it carefully before you start to use the Website.

ACCEPTANCE OF THESE TERMS OF SERVICE

By accessing or using the Website, you are indicating that you have read and understood these Terms of Service and that you accept and agree to abide by these Terms. If you do not agree to any of these Terms, please do not use the Website. By agreeing to our Terms of Service, you are also accepting and agreeing to our Privacy Policy.

By using this Website, you represent and warrant that you are at least eighteen (18) years of age or of legal age to form a binding contract with NYAS. If you do not meet all of these requirements, you must not access or use the Website.

UPDATES TO THE TERMS

These Terms are subject to change by NYAS without prior written notice at any time, in our sole discretion. Any changes to the Terms will supersede and replace any previous Terms of Service effective immediately upon posting to this page. You should review these Terms prior to purchasing any product or services that are available through this Site. It is your responsibility to periodically review these Terms of Service as posted here for any changes. Your continued use of the Website after the posting of changes to these Terms of Service will constitute your acceptance of such changes. For the avoidance of doubt, you should discontinue using the Website if you do not agree with any changes to these Terms of Service.

ELIGIBILITY; REGISTRATION

This Website is available only to Users who can form legally binding contracts under applicable law. By using this Website, you represent and warrant that you are at least eighteen (18) years of age or of legal age to form a binding contract with NYAS. If you are visiting this Website from a country other than the country in which our servers are located, your communications with us may result in the transfer of information (including your registration or Personal information, as described below) across international boundaries. By visiting this Website and communicating electronically with us, you consent to such transfers.

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 orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.

PRICES AND PAYMENT TERMS

1. All prices, discounts, and promotions posted on this Website 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 strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

2. We may offer from time to time promotions on the Website that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.

3. The following terms may be used by us to communicate pricing information:

(a) “[term for seller offered price]” references our normal price for a product or service.

(b) “Sale” refers to a reduced price for a product or service.

(c) “Clearance” refers to a reduced price for a product or service that will be discontinued.

4. Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. We accept Visa (credit and debit cards), MasterCard (credit and debit cards), American Express, Discover (US merchants only), Diner’s Club, JCB, Apple Pay, and NYAS Gift Cards for all purchases, and we may add more payment mechanisms at our discretion. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your order.

5. Before you pay any fees for items you would like to purchase (“Products”), you will have the opportunity to review and accept the fees that you will be charged.

6. Our store is hosted on Shopify. They provide us with the online e-commerce platform that allows us to sell our products and services to you. Through Shopify, we have partnered with certain third-party payment processors to process payments you make via the Services.

SHIPMENTS; DELIVERY; TITLE AND RISK OF LOSS

We will arrange for shipment of the products to you. We deliver our products Worldwide. U.S. orders will be shipped via USPS Priority Mail. The average transit times for U.S. orders is 3-4 business days. Orders shipped to Canada will be sent via FedEx International Ground. The average transit times for Canadian orders is 3-5 business days. All other international orders will be shipped with USPS International Priority Mail. The average transit times for international orders is 8-15 business days with delivery time varying based on location. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in processing, handling, packing, shipping, and delivery of your order.

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. There are circumstances that are out of our control (natural disasters, holidays, weather, etc.) that may cause shipping postponements.

As such, we are not liable for any delays in shipments that our carriers may experience.

RETURNS AND REFUNDS

If you are not satisfied with your purchase, with the exclusion of gift cards and e-gift cards, we will accept a return of the products within thirty (30) days of delivery in exchange for store credit. Please note that items returned within 30 days cannot be refunded to the original payment source. Store credit will be issued in the form of a NYAS digital gift card. To return products, you must email info@nyasize.com to obtain a pre-paid return shipping label.

U.S. customers are all eligible for 1 return that is free of charge and we will provide you with a return label. Any additional return/exchange fees will need to be covered by the customer. International orders must be shipped back to our return address by you. You are responsible for all shipping and handling charges on returned items unless otherwise specified. You bear the risk of loss during shipment. We therefore strongly recommend that you use a carrier that can provide you with proof of delivery for your protection.

Returned items must be received in new, unused, and re-sellable condition. All original packaging and any protective coverings must still be on the product. Returns that are soiled, damaged, or altered may not be accepted and may be sent back to the customer without the issuance of store credit. Store credit will be issued within approximately two (2) of business days of our receipt of your merchandise.

For defective returns, please refer to the manufacturer’s warranty (see below) included with the product or as detailed in the product’s description on our Website.

Gift cards and e-gift cards are final sale and cannot be returned, exchanged, or redeemed for cash.

DISCLAIMERS

We do not manufacture any of the products or services offered on our Website.

All products and services offered on this Website are provided “as is” without any warranty whatsoever, including, without limitation, any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; or (c) warranty against infringement of intellectual property rights of a third-party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to you.

You affirm that we shall not be liable, under any circumstances, for any breach of warranty claims or for any damages arising out of the manufacturer’s failure to honor its warranty obligations to you.

ERRORS, INACCURACIES AND OMISSION

Occasionally, there may be information on the Website that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information on the Website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend, or clarify information on the Website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Website should be taken to indicate that all information on the Website has been modified or updated.

INDEMNIFICATION AND LIMITED LIABILITY

You agree to indemnify, defend, and hold harmless Not Your Average Size, LLC and its subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

In no event shall we be liable to you or any third-party for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages arising out of, or relating to, and/or in connection with any breach of these Terms, regardless of (a) whether such damages were foreseeable, (b) whether or not we were advised of the possibility of such damages and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.

Our sole and entire maximum liability and your sole and exclusive remedy shall be limited to the actual amount paid by you for the products and service you have ordered through our Website.

GOODS NOT FOR RESALE OR EXPORT

You represent and warrant that you are buying products or services from the Website for your own personal or household use only, and not for resale or export.

PRIVACY

We respect your privacy and are committed to protecting it. Our Privacy Policy governs the processing of all personal data collected from you in connection with your purchase of products or services through the Website.

LOCATION

We make no representations or warranties that the Website is appropriate or available for use in your country of origin. Visitors who choose to access the Website do so at their own initiative and are responsible for compliance with any and all local laws and regulations that may apply to such access.

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, telecommunications interruptions or computer viruses, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), acts of customer or any of its representatives, 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. The Website may be temporarily unavailable from time to time for maintenance or other reasons.

GOVERNING LAW AND JURISDICTION

This Website is operated from the U.S. 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 Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois.

DISPUTE RESOLUTION AND BINDING ARBITRATION

You and Not Your Average Size, LLC are agreeing to give up any rights to litigate claims in a court or before a jury. Any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort, injunctive and equitable claims) between you and us arising from or relating in any way to your purchase of products or services through the Website, will be resolved exclusively and finally by binding arbitration.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section Error! Reference source not found.. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.

You agree to an arbitration on an individual basis. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

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 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

NO THIRD-PARTY BENEFICIARIES

These Terms do not and are not intended to confer any rights or remedies upon any person other than you.

SEVERABILITY

The provisions of the Terms of Use are intended to be interpreted in a manner that makes them valid, legal, and enforceable. The failure of NYAS to enforce any right of the provisions in the Terms of Use shall not constitute a waiver of such right or provision. In the event that any provision of the Terms of Use is found to be partially or wholly invalid, illegal, or unenforceable, such provision shall be modified or restricted to the extent and in the manner necessary to render it valid, legal and enforceable. It is expressly understood and agreed that such modification or restriction may be accomplished unilaterally by us, or alternatively, by disposition of an arbitrator or a court of law. If such provision cannot under any circumstances be so modified or restricted, it shall be excised from the Terms of Use without affecting the validity, legality or enforceability of any of the remaining provisions.

ENTIRE AGREEMENT

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such 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 NYAS.

These Terms of Service and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and us and govern your use of the Website, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.