Terms of Service
Last Modified: 24 March 2022
These Terms of Service, including any policies, rules and other terms that are expressly incorporated herein by reference (collectively, the “Terms”), set forth a legally binding agreement between you (“you” or “your”) and Darsula Inc. (“we,” “us,” or “our”). These Terms govern your use of our website located at www.jilliandempsey.com (the “Site”), and any content, information, products or services made available on or through the Site (collectively, the “Services”). Please read these Terms carefully before using the Site or any of the Services.
1. Acceptance of Terms
By accessing or using the Site or the Services, or by clicking to accept these Terms when this option is made available to you, you accept and agree to be bound by these Terms. In addition to these Terms, your access to and use of certain portions or aspects of the Site, or your ability to access and/or use certain Services, may require you to accept additional terms and conditions (collectively, “Additional Terms”). The Additional Terms are hereby incorporated and made a part of these Terms by this reference.
These Terms govern your ACCESS TO AND use of the Site And THE services. BY USING THE SITE AND/OR ANY OF THE SERVICES, YOU EXPRESSLY AGREE TO BE BOUND BY THESE Terms. IF YOU DO NOT AGREE TO THESE Terms, DO NOT ACCESS OR USE the Site OR THE SERVICES.
2. Age Requirements
You must be at least the age of majority in your state of residence, and fully able and competent to enter into and abide by the terms and conditions of these Terms, in order to access and use the Site and/or the Services. Individuals under the age of majority are not eligible to use the Site or the Services and may not submit any personal information to us. By accessing or using the Site and/or the Services, or by clicking to accept these Terms when this option is made available to you, you represent and warrant that you are at least the age of majority in your state of residence, are legally entitled to enter into these Terms, are legally able to enter into any and all purchase agreements with us and our partners, vendors, agents, and service providers, and have the right, authority and capacity to enter into and abide by the terms and conditions of these Terms.
3. Modification to these
We will e-mail you or post a notification on the Site in the event of any material changes to these Terms. Such changes, whether in the form of modifications, additions, or deletions, shall be effective when specified in the relevant notification or, if the change is immaterial, immediately upon appearing on the Site. Please check these Terms periodically for changes. Your continued use of the Site and/or the Services following our posting of any changes to these Terms means that you accept and agree to those changes.
We are committed to helping those with disabilities access the Site and/or Services. We strive to provide an excellent online experience for all our guests – including those with sight, hearing, and other disabilities. If you have difficulty using or accessing any element of the Site or the Services or if you have any feedback regarding accessibility of the Site or the Services, please feel free to contact us at email@example.com.
6. Mobile Services
Certain of the Services may be available via a mobile device or application. To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Services, may be prohibited or restricted by your carrier, and not all Services may work with all carriers or devices. You agree that we may communicate with you by SMS, MMS, text message or other electronic means to your mobile device.
7. Account Access Information
In the event you are required to create an account to access any part of the Site and/or Services, you must treat your account information (including, without limitation, your username, password, and any other piece of information required as part of our security procedures) as confidential, and you must not disclose the foregoing to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person or entity with access to the Site and/or Services or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You agree to be responsible for any use of the Site and/or Services or portions of it using your username, password, or other security information. We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time, if you have violated any provision of these Terms.
8. Restrictions on Use
You may use the Site, the Services and all associated content solely for your personal use and enjoyment. The Site, the Services, or any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You shall not attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by us in providing the Site.
To access parts of the Site or the Services, you may be asked to provide certain, sometimes personal, information. It is a condition of your use of the Site or the Services that all the information you provide on the Site or the Services is correct, current, and complete.
You agree not to use any device, software, or routine to interfere with the proper functioning of the Site. In addition, when accessing or using the Site or the Services you may not:
- Transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, or indecent information of any kind, including images and language;
- Transmit or solicit any information, software, or other material that violates or infringes upon the rights of others, including material that is an invasion of privacy or publicity rights; is protected by copyright, trademark, or other proprietary rights; or is a derivative work with respect thereto, without first obtaining permission from the owner or right holder;
- Transmit any information, software, or other material that contains a virus, trojan horse, time bomb, worm or other rogue programming or other harmful component; or
- Use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute any information or content available on the Site.
Additionally, you are prohibited from violating or attempting to violate any security features of the Site. Any violation of system or network security may subject you to civil and/or criminal liability.
9. User Covenants
By accessing or using the Site and/or the Services, you agree to, acknowledge, and represent as follows:
- You will comply with all applicable federal, state or local laws in using the Site and/or the Services, and you will not perform or fail to perform any act that you know or reasonably should know would place us or our affiliates in violation of any applicable law.
- You have the authority and capacity, under the laws of the state or jurisdiction in which you reside, to make the representations and warranties and be bound by the covenants provided herein.
10. Copyrights, Trademarks, and Other Proprietary Rights
When accessing and using the Site and/or the Services, you agree to obey the law and to respect the intellectual property rights of others.
As between you and us, all content on the Site and the Services, including text, hidden text within our source code, trademarks, software, photos, video, images, graphics, music, audio-visual content, podcasts, recordings, sound, or any other digital media, is owned by us and/or our licensors and is subject to protection by patent, copyright, trademark, or other proprietary rights. In addition, the entire content of the Site is copyrighted as a collective work under the United States copyright laws, and we own the copyright in the selection, coordination, arrangement, and enhancement of such content. Any feedback you provide to us relating to the Site and/or the Services, shall be deemed to be non-confidential. We shall be free to use such information on an unrestricted basis.
All trademarks, trade names, trade dress, logos, and service marks (collectively, the “Trademarks”) appearing on the Site and/or the Services are the property of their respective owners, including, in some instances, us and/or our partner companies. Nothing contained on the Site, the Services or these Terms serves to grant you, by implication or otherwise, a license or right to use any of the Trademarks or copyrights owned by us or by any third party.
Except as expressly provided herein, you may not use, modify, create derivative works of, copy, redistribute, reproduce, publish, transmit, display, commercialize, or in any other way exploit any content or material from the Site or the Services without express written permission from us and, if applicable, the respective copyright owner. You acknowledge and agree that you do not acquire any ownership rights by accessing or using the Site and/or the Services.
User Content and Submissions
You agree that you shall be solely responsible for any violations of any relevant laws and for any infringement of third-party rights caused by any materials, including without limitation, creative suggestions, submissions, artwork, images, text, ideas, notes, drawings, photographs, graphics, messages, concepts, or other information or communications (“User Content”) that you send, upload, post, provide or transmit to us via this Site, the Internet, e-mail, or otherwise. You hereby grant to us and our affiliates, the royalty-free, perpetual, irrevocable, worldwide, transferable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and display User Content in connection with the Site and the Services, including, without limitation, to publish and display User Content via social media accounts owned or controlled by us. You represent and warrant that you are the owner of or have the right to license User Content and that your User Content does not infringe, misappropriate or violate the intellectual property or other proprietary rights of any third party.
11. MONITORING; COPYRIGHT COMPLAINTS
You agree that we have the right, but not the obligation, to monitor, suspend, terminate, edit, disclose, refuse to post, or remove at any time, for any reason in our sole discretion, any material, content, and/or activity anywhere on the Site or the Services, including, without limitation, any User Content. In the event you post or provide content in violation of these Terms or to which you do not have adequate rights, we may suspend or terminate your access to or use of the Site or the Services. Notwithstanding this right, we do not and cannot review all materials submitted to the Site or the Services. If notified, we will investigate an allegation that content transmitted to us is in violation of these Terms and determine whether to have the communication removed. However, we assume no responsibility or liability arising from or relating to any actions or content transmitted by or between you or any third party within or outside of the Site or the Services, including, but not limited to, any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained therein.
Digital Millennium Copyright Act
We may, in appropriate circumstances, terminate the access of users who infringe or otherwise violate the rights of others. While we reserve the right to terminate the access of users who infringe or otherwise violate the rights of others in our sole discretion, if you are a Repeat Offender (as defined below), your access to the Site or the Services will be suspended or terminated. “Repeat Offender” shall mean any user of the Site or the Services against whom we receive three (3) or more Infringement Notifications (as defined below).
If you believe that your work has been copied and is accessible on the Site or Services in a way that constitutes copyright infringement, you may notify us (each, an “Infringement Notification”) by providing the following information (as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. sec. 512):
- A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at the Site are covered by a single notification, a representative list of such works at the Site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you, your agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please send the written communication to our copyright agent by e-mail and by U.S. Mail to:
Name: Darsula LLC
Address: 9100 Wilshire Blvd
Address: Suite 1000W
Attn: DMCA Agent Patrick Mason
E-mail Subject: “DMCA Request
12. Product reviews
We may provide specific opportunities for you to tell us and other users what you think about our products or other services made available on our Site (“Product Reviews”). If you take elect to provide a Product Review, you understand and agree that you shall state your opinions lawfully, honestly and in good faith and reveal to others any conflict of interest or relationship that might influence your views, if applicable. You hereby grant to us and our affiliates, the royalty-free, perpetual, irrevocable, worldwide, transferable, non-exclusive right and license to use, reproduce, modify, adapt, publish, share, re-post, translate, create derivative works of, and display your Product Reviews, without payment, royalties, or other consideration to you, in connection with (i) the operation of the Site, and (ii) for our business purposes, including, without limitation, promotion, advertising, or marketing of us, in any form, medium or technology now known or later developed (including, without limitation, on any of our social media accounts). All Product Reviews are strictly the opinion of the user posting such Product Review, and we do not endorse or approve any such Product Reviews, nor do we have any responsibility or liability for the accuracy, appropriateness or content of such Product Reviews.
13. Unsolicited Material Submission
You agree not to send to us any unsolicited materials, pitches, or ideas for any of our current, future or proposed productions or shows (collectively, “Unsolicited Materials”). You understand that we will not review, examine or consider your Unsolicited Materials and that as a matter of our consistent, established business practice, we will delete all Unsolicited Materials that are received. You recognize that we may have access to and/or may create or have created materials and ideas, which may be similar or identical to the Unsolicited Materials in theme, idea, plot, format or other respects. You agree that you will not be entitled to any compensation because of the use of any such similar or identical material which may have been independently created by us or may have come to us from any other independent source. To the maximum extent permitted by law, you hereby agree to indemnify and hold the Company Parties (as defined below) harmless from any losses, including legal fees and expenses, that directly or indirectly result from your Unsolicited Materials. To the maximum extent permitted by law, you hereby expressly waive any and all claims, now known or hereafter known, against the Company Parties arising out of or attributable to your Unsolicited Materials.
14. THIRD-PARTY SITES
We may provide links and pointers to websites, goods, and/or services maintained, owned, or controlled by others (“Third-Party Sites”) that are not affiliated with us and may be located in different countries and that may subject to different regulatory and other legal requirements. We have not reviewed all of the Third-Party Sites linked to the Site or the Services and are not responsible for the content or services offered on such Third-Party Sites, including, but not limited to, any advertising, order processing and fulfilment, or payment terms related to such Third-Party Sites. Access to Third-Party Sites through the Site or the Services does not constitute an endorsement by us or any of our subsidiaries or affiliates of any such Third-Party Sites, or the content or services offered by them. We have no responsibility or liability for these Third-Party Sites’ independent policies or actions and are not responsible for the privacy practices of such Third-Party Sites or retailers. Complaints, claims, concerns, or questions regarding Third-Party Sites should be directed to the applicable third party.
If we provide links to social media platforms, such as Facebook or Twitter, and you choose to visit any such social media platforms through our links, please note that the personal information you post, transmit, or otherwise make available on or through such social media platforms may be viewed by the general public. We do not control any content or information made available on such social media platforms and we are not responsible for any third-party use of any such content or information, including, without limitation, personally identifiable information, that you have posted, transmitted, or otherwise made available on such social media platforms.
We will not be liable if, for any reason, all or part of the Site or the Services is ever unavailable. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site or the Services, or any part thereof, with or without notice. We undertake no obligation to update, amend, or clarify information on the Site or the Services, except as required by law. No specified update or refresh date applied on the Site should be taken to indicate that all information on the Site or the Services has been modified or updated. Please remember when reviewing information on the Site or the Services that such information may not represent the complete information available on a subject. In addition, subsequent events or changes in circumstances may cause existing information on the Site or the Services to become inaccurate or incomplete.
On occasion, information on the Site or the Services may contain errors. We reserve the right to, at any time without prior notice, correct any errors, inaccuracies, or omissions, and to change or update information.
Products, Prices and Promotions
Products offered on the Site are offered subject to availability. All products should be used strictly in accordance with any applicable instructions, precautions and guidelines. All prices, discounts, and promotions posted on the Site are subject to change without notice. We may, from time to time, offer promotions or other discounts on product purchases. We reserve the right to suspend any such promotions, update product information and change prices at any time without notice. Furthermore, we reserve the right to change, limit, refuse, or cancel any order you place with us at our sole discretion. If we change or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address and/or phone number provided at the time the order was made.
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.
Use is limited to one (1) time per coupon and/or discount code per customer and subject to the terms and conditions of the applicable coupon and/or discount code. Discounts will be applied at checkout. Online offers have no cash value and are not redeemable for cash. Coupons and discount codes are not valid on previous purchases or when combined with other promotional offers.
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. By entering into any transaction on the Site, you represent, warrant and covenant that all information you provide is true, correct, and complete (including, without limitation, your credit card information and billing address); that any credit card transactions submitted by you are authorized; that charges incurred by you will be honored by your credit card company; that 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 Site at the time of your order; and that you are the legal holder of any credit card or payment account used to enter into any transaction on the Site.
If, in our sole discretion, we determine that: (i) your means of payment is not valid, (ii) a transaction is not authorized, (iii) your means of payment cannot be processed or verified at the time of any charge, (iv) a charge is disputed for any reason other than failure by us to deliver the item(s) purchased by you, (v) you have abused or misused promotions or promotion codes, as applicable, or (vi) you have otherwise used the Site to enter into an improper transaction, we reserve the right to immediately terminate any pending transactions, suspend your access to the Site, and terminate all of our obligations hereunder.
By agreeing to these Terms, you consent that the payment processing services for products purchased on the Site are provided by Shopify.
We will arrange for shipment of the products to you. Risk of loss passes to you upon delivery of the products to the carrier. You will pay all shipping and handling charges specified during the ordering process. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
Returns and Exchanges
ALL INTERNATIONAL SALES AND ALL GOLD BAR AND LIP LOCKET NECKLACE SALES ARE FINAL.
We do not accept returns or exchanges for the Gold Bar, Lip Locket Necklace, or any products purchased internationally.
Except with respect to the Gold Bar or Lip Locket Necklace and any international sales, if you are not completely satisfied with any product purchased via the Site, our policy is to accept returns of such products within fourteen (14) days following placement of order and refund your purchase price, less the original shipping and handling costs and less the shipping and handling costs for such return, so long as such return is made with valid proof of purchase and original packing slip and provided such products are returned in unused and unopened condition. To return products, you must first email us at firstname.lastname@example.org including your order number in the subject line in order to initiate the return and to receive instructions for such return. You are responsible for all shipping and handling charges on returned items unless otherwise specified. If you feel that you did not receive your purchased product and you have been charged, please contact us at email@example.com.
Resale of Products
The Site sells products to retail consumers only. You shall not use the Site to purchase products for re-sale or export. We reserve the right to immediately bar access to the Site and terminate the account of any user who violates this provision.
If you have any questions or concerns with your order, please e-mail us at firstname.lastname@example.org.
17. Disclaimer of Warranties
THE SITE AND THE SERVICES MAY PROVIDE YOU WITH CERTAIN INFORMATION, INCLUDING, WITHOUT LIMITATION, MAKEUP, HAIRcare AND SKINCARE RELATED INFORMATION, TUTORIALS, OR RECOMMENDATIONS. ALL SUCH INFORMATION IS PROVIDED FOR GENERAL INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL, MEDICAL, OR OTHER PROFESSIONAL ADVICE OR AN OPINION OF ANY KIND. THE SITE AND THE SERVICES DO NOT REPLACE ANY MEDICAL PROFESSIONAL OR MEDICAL RESOURCE. FURTHER, ALL SUCH INFORMATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY USE OF, OR RELIANCE ON, SUCH INFORMATION IS AT YOUR SOLE RISK.
THIS SITE DOES NOT PROVIDE MEDICAL ADVICE. THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ITEM DESCRIPTIONS, ARTICLES, NEWSLETTERS, BLOGS AND NEWS MADE AVAILABLE ON OR THROUGH THIS SITE, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ARE NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT OR PREVENTION OF ANY DISEASE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER OR PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION OR PRODUCT. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THIS SITE.
IF YOU THINK YOU OR YOUR FAMILY MEMBER(S) MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR AND/OR 911 IMMEDIATELY. WE DO NOT ENDORSE OR RECOMMEND ANY SPECIFIC PRODUCTS, OPINIONS, PHYSICIANS, TESTS, PROCEDURES, OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, ARTICLES, NEWSLETTERS, BLOGS, AND NEWS THAT MAY BE MENTIONED ON THE SITE. RELIANCE ON THE SITE OR THE INFORMATION, SERVICES AND/OR PRODUCTS MADE AVAILABLE THEREIN IS SOLELY AT YOUR OWN RISK.
In addition, you acknowledge that the inclusion of any people, products or items in this SITE does not constitute an endorsement by such people, products or items (as applicable) of the SITE.
you expressly acknowledge and agree that your use of the SITE And the Services (Including, without limitation, ANY products offered via the Site) IS at your sole risk. THE SITE And the Services (Including, without limitation, ANY products offered via the Site) ARE provided on an “as is” and “as available” basis. We expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. we make no warranty that the site or the Services (Including, without limitation, ANY products offered via the Site) will meet your requirements or will be uninterrupted, timely, unfailingly secure, or error-free, that the results that may be obtained from the use of thE site or the Services will be accurate or reliable, that the quality of any information or materials obtained by you through the site or the Services will meet your expectations, and that any errors in the site or the Services will be corrected. your sole remedy against us for dissatisfaction with the site or the Services is to stop using the site or the Services, as applicable. the foregoing limitation of relief is an essential part of the bargain between you and us under these terms. PLEASE note that some jurisdictions do not allow limitations on the length OR SCOPE of an implied warranty, so the above limitations may not apply to you.
18. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL WE AND/OR OUR SUCCESSORS, ASSIGNS, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, MEMBERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, AND MANAGERS BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE REASONABLY FORESEEABLE), RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICES (Including, without limitation, ANY products offered via the Site); (II) ANY ACT OR OMISSION BY YOU THAT IS BASED (IN WHOLE OR IN PART) ON ANY INFORMATION, STATEMENT OR CONTENT THAT IS PROVIDED OR OTHERWISE MADE AVAILABLE TO YOU BY OR THROUGH THE SITE OR THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR OTHER DATA; OR (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE. IN NO EVENT SHALL THE COLLECTIVE LIABILITY OF Darsula, Inc. AND OUR SUCCESSORS, ASSIGNS, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, MEMBERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, AND MANAGERS TO YOU, FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED, IN THE AGGREGATE, ONE HUNDRED U.S. DOLLARS ($100). Some jurisdictions do not allow the exclusion of certain warranties and/or the limitation of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you; all other provisions of these Terms remain in full force and effect.
You agree to indemnify, defend, and hold harmless us, our affiliates, our subsidiaries, and each of our and their respective shareholders, members, managers, directors, officers, employees, personnel, agents, successors and assigns (collectively, the “Company Parties”) from and against any and all claims, allegations, demands, actions, causes of action, lawsuits, investigations and proceedings (including any and all liability, damages, costs, expenses (including reasonable attorneys’ fees), settlements, fines, penalties and losses of any kind or nature whatsoever resulting from any of the foregoing) arising out of or in connection with: (i) your violation or breach of these Terms; (ii) your use of the Site and/or the Services (including, without limitation, any products offered via the Site); (iii) your dispute with another user; (iv) your violation of any rights of any third party; (v) any claim related to your User Content; or (vi) your violation of applicable law. This indemnification obligation will continue after you stop using the Site and/or the Services. We reserve the right to assume the exclusive defense and control of any claim and matter otherwise subject to indemnification by you at your expense, and you shall not in any event settle or otherwise dispose of any matter without our prior written consent.
20. 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, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, inability to obtain or delay in obtaining adequate or suitable supplies, breakdown of materials or telecommunications, or power outage.
We may send you responses or notices by e-mail, posting to the Site, or written communication sent by U.S. Postal Service. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
22. Governing Law
These Terms and your use of the Site and/or the Services shall be governed by and construed for both substantive and procedural purposes in accordance with the laws of the State of California, U.S.A., without giving effect to any principles of any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the laws of any jurisdiction other than those of the State of California to apply.
23. DISPUTE RESOLUTION
Timing of Claims
Any cause of action or claim you may have with respect to the Site and/or the Services must be commenced within one (1) year after the claim or cause of action arises.
Arbitration and Venue
Any dispute relating in any way to your use of the Site and/or the Services shall be submitted to confidential arbitration in Los Angeles, California, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court, and you consent to jurisdiction and venue in such courts. Arbitration under these Terms shall be submitted to confidential, final and binding arbitration administered by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with JAMS rules and procedures then in effect. The arbitrator(s) will apply the laws California, without references to the principles of conflicts of laws, to the merits of any such dispute.
Ultimately, the selected arbitrator must have expertise in the subject matter of the dispute. The expenses of the arbitration charged by the arbitrator shall be borne by the non-prevailing party or otherwise as appropriately allocated between the parties to the arbitration by the arbitrator in his or her discretion. However, in every other regard, each party shall pay for and bear its own costs and legal fees, costs, and expenses. The arbitration shall be completed within one hundred twenty (120) days of either giving notice or filing a demand to arbitrate with the American Arbitration Association (whichever shall first occur).
Class Action Waiver
To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR WE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one (1) 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.
25. U.S. Use only
26. Notice for California Users
Under California Civil Code Section 1789.3, California users of the Site are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N. 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.