Terms & Conditions
The following Terms of Service (“Terms”) between you (“you” or “your”) and Freshly Set Inc., a Delaware corporation (“we”, “our”, “us”, “FS”, or “Freshly Set”) describes the terms and conditions on which you may access and use the Freshly Set website located at www.freshlyset.com (the “Site”) and related services including Freshly Set’s product rental and sale services (together with the Site and the FS Content, as defined below, the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood, and agreed to be bound by these Terms.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING “I AGREE” OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.
BY ACCEPTING THESE TERMS, YOU ARE AGREEING TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER CONTAINED IN SECTION 7, BELOW.
1. About the Services
Through the Services, we aim to give you access to luxury table settings and event supplies for use in your home for your specified rental period.
Children under the age of 18 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf.
MODIFICATION OF THE SERVICES OR THE TERMS
FS may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, FS will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to FS upon checkout.
2. Rental and Sale of Products
The Services include the rental and sale of event supplies, decor, and related services (“Products”). This agreement sets out the terms and conditions that apply to your rental or purchase of any Product.
18 Years or Older
Products may be rented or purchased for use by individuals under 18 years of age, but we rent and sell only to adults, who may rent or purchase the Products with a payment card or other approved payment method. By agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting or purchasing the Products as described in these Terms.
You acknowledge and agree that we may place limits on the rental or purchase of Products. We reserve the right to limit, cancel, or prohibit any rentals or sales of Products for any reason in our sole discretion, including but not limited to availability and geographic concerns.
Subject to availability, your Products may be ordered up to four (4) days ahead of your requested delivery date. Orders within four (4) days of your desired delivery date are subject to the approval of FS and cannot be guaranteed. All deliveries will be through FS’ shipping partners, which may change from time to time at FS’ sole discretion. The shipping method used will be at the discretion of FS.
If you do not pay the amounts you owe to FS when due, then FS may institute collection procedures. You agree to pay FS’ costs of collection, including without limitation reasonable attorney’s fees.
You consent to receive communications from us, including email, text messages, and phone calls. These communications may be for the purpose of notifying you of the status of your order, sending you reminders, and providing you other information. Standard message and data rates charged by your mobile carrier may apply. You may opt out of receiving communications by following the unsubscribe procedures or contacting our Customer Support team. You acknowledge that opting out of communication may impact your use of the Services.
You may opt out of receiving communications by following the unsubscribe procedures or contacting our Customer Support team. You acknowledge that opting out of communication may impact your use of the Services.
The following additional conditions apply to the rental of any Product.
The rental fee (“Rental fee”) for the Product will be the total of the rental fee, insurance charges, and delivery charges listed on the Site for your rental of the Product. When you place an order for a Product, you hereby authorize FS to charge your payment card for the Rental Fee. FS will charge your payment card immediately upon order, regardless of how far in advance that Product is reserved. In addition, you hereby authorize FS to charge your payment card for an amount equal to 100% of the original retail value of the Product (when new) set forth on the Site (“Retail Value”); provided that FS will only charge your payment card for an amount greater than the Rental Fee as described below. Rental Fees exclude all federal, state, and local taxes, fees, customs, duties, and other governmental assessments, all of which shall be paid by you directly or, if paid by FS, shall be paid by you to FS in connection with your order.
You may cancel your rental order subject to the following cancellation fees and policies:
- i. Any order cancellations made thirty (30) or more days in advance of the delivery date will result in a full refund in the form of your original payment.
- ii. Any order cancellations less than thirty (30) days but more than four (4) days in advance of the delivery date will not receive a refund, but will receive a credit to your FS account in the form of a promo code that may be applied to any future FS rental, minus a 10% restocking fee.
- iii. If you cancel four (4) or fewer days before your delivery date, we are unable to offer a refund or any FS account credit.
With the delivery of the Product, FS will provide you with a pre-paid FS bag as well as instructions for returning the Products to FS (“Return Packaging”).
Receipt of the Products
Upon delivery, you bear responsibility for the Products. FS does not bear liability for Products left unattended in an insecure delivery location.
Use of the Products
By renting Products from Freshly Set you agree that it is for a legitimate purpose and not to engage in unfair and/or illegal business activities or competition. You agree to treat the Products with great care, as if borrowed from a friend. You are responsible for loss, destruction, or damage to the Products for any reason other than normal wear and tear. Normal wear and tear encompasses minor stains, rips, scratches, or other minor damage. If you return a Product damaged beyond normal wear and tear, then you agree to be charged for the price of repairing or replacing the Product, as determined in our discretion, up to the Retail Value of the Product.
Return of the Products; Extensions
You agree to prepare and pack the Products for return in the Return Packaging on or before the return date specified on the packing slip and listed in your order confirmation email. You may extend your order for a Product by contacting customer support at firstname.lastname@example.org; provided that any extensions are subject to other orders for that Product. You must return the Product by making Product available for pick-up by FS shipping partner. You are solely responsible for the Product until it has been picked up by FS shipping partner. We are not responsible for any personal or other items left in the Products or which are returned to FS in the Return Packaging. Our staff may assist in attempting to locate such items at a customer’s request, but are not obligated to and assume no liability for doing so.
If you return the Products late or not at all, a late fee of $30.00 will be charged to the payment card for every day that you are late returning the Products, and you agree to pay such late fees, up to an amount not to exceed 200% of the Retail Value plus applicable sales tax (plus the Rental Fee). The late fee is payable for each order of Products that is not returned when due. If you have not returned a Product within twenty (20) days after the return date for the Product, your late return will be considered a non-return and FS will charge your payment card the maximum late fee set forth in this agreement, less any late fees that you have already paid, plus applicable sales tax.
The following are the limited warranties FS provides in connection with Product rentals. FS’ liability to you for failure to comply with any of these warranties is limited to timely delivery of Product conforming to the warranties or a refund of the Rental Fee as determined by FS.
Subject to availability, we will deliver the Products you ordered, including the specified size, color and design, on or before the delivery date for which you ordered them, except in the rare event that the Product is damaged beyond repair or there is an occurrence subsequent to the placing of the order that prevents timely delivery. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any available rental Product to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a reasonable substitution replacement product of the same or greater value. Products may appear different in color and style than as displayed on the Site.
Clean and Ready to Use
The Products will be professionally cleaned and delivered ready to use. FS cleans and inspects each Product with the utmost care, but use of the Product is at your own risk and FS shall not be held liable for any health-related complaints associated with any Product.
The following additional conditions apply to the sale of any Product.
All Sales are Final and As-Is
You acknowledge and agree that only those Products designated by us on the Site as available for purchase are eligible for purchase by you. All Products are sold on an “as is” basis, without any warranty whatsoever, and all Product sales are final.
The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges listed on the Site in connection with your purchase of the Products. Purchase Price is as listed on the FS website at the time of purchase, and is subject to change. FS reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order for a Product, you hereby authorize FS to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Purchase Prices exclude all federal, state and local taxes, fees, customs, duties, and other governmental assessments, all of which shall be paid by you directly or, if paid by FS, shall be paid by you to FS in connection with your purchase order. Purchase orders are final and cannot be cancelled.
3. Use of the Services
1. Freshly Set Content
Content Provided “As-Is”
All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from FS staff and event planners, and photos and comments from other users (“FS Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The FS Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any FS Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the FS Content.
We may update the FS Content, including Product description and specifications, as we deem appropriate and without notice to you.
2. Third Party Content
Links to Third Party Websites
The Services may contain links or references to non-FS websites, products, services or other materials or content (“Third Party Content”). FS is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from FS, and FS has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that FS endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
3. Acceptable Use Policy
Use of FS Content
No part of the Services, including the FS Content, may be reproduced or transmitted in any form, by any means, except that FS authorizes you to view, copy, download, and print FS Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the FS Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the FS Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the FS Content.
Use of the Services
You may not use the Services to: (i) transmit any content, information or other materials that are, or which FS considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, an FS representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.
You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
Indemnification for Breach
By using the Services, you agree to indemnify, hold harmless and defend FS and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.
4. Your Content
If you post, upload or make available to FS or the Services, or otherwise submit to or through FS as part of your use of the Services, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to FS a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize FS to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
5. Your Account
Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify FS promptly of any unauthorized use of your account or password.
There may be delays, omissions, or inaccuracies in the Services, including the FS Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
4. Intellectual Property
1. Ownership of Services
The Services, including the FS Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of FS and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. All other product names are trademarks or registered trademarks of their respective owners. FS and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.
Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any FS Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of FS or such third party that may own such FS Content.
2. Services License
Subject to your compliance with these Terms, FS grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
3. Feedback and Comments
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that FS may use your Feedback without restriction or obligation to you or any third party.
1. Termination by You
You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at email@example.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.
2. Termination by Freshly Set
Any violation of these Terms, may result in suspension or termination of your access to the Services and/or removal of Your Content. FS may also terminate your account if FS determines that your conduct poses a risk or liability to FS, or for any other reason as determined by FS in its sole discretion.
3. Effects of Termination.
In each of these cases, the Terms will terminate, including your license to use the Services, except that the sections pertaining to Rental Fee, Late Fees, Lost Return Packaging, Failure to Pay Fees, and Acknowledgment will still apply.
6. Disclaimer of Warranties; Limitation of Liability
1. Limited Warranties
The limited warranties set out in Section 2(B) for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by FS in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms.
Your sole and exclusive remedy and FS' sole and exclusive liability for a breach by FS of the limited warranties set out in Section 2(B) shall be, at FS' option, FS' use of its commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of your Rental Fee, as applicable (excluding insurance and delivery charges).
2. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES AND PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, FS DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE FS CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
3. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL FS BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF FS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 6(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
7. Dispute Resolution; Arbitration
1. Informal Process First
Both you and FS agree that in the event of any dispute between us, you and FS will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
2. Informal Process First
All disputes between you and FS will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE 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, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of FS or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either FS or you pursuant to the following conditions:
- (a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will conducted at a JAMS facility in your area or at a JAMS facility in New York City.
- (b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
- (c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
- (d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
- (e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, with FS remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.
- (f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
- (g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions.
FS makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws.
The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the FS Content, or any part thereof, in any way, in violation of United States law.
Governing Law and Venue
These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in New York County, New York, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
These Terms are the entire agreement between you and FS relating to the subject matter herein and shall not be modified except by FS in accordance with these Terms, or as otherwise agreed in writing by you and FS. No employee, agent or other representative of FS has any authority to bind FS with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
Severability and Waiver
If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
You may not assign or transfer these Terms or any of your rights or obligations under these Terms. FS may assign these Terms at any time without notice to you.
FS will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond FS’ reasonable control.
Please send any questions or comments, or report violations of these Terms, to Freshly Set at firstname.lastname@example.org.