Terms of Use

This is a contract. Please read it carefully. These Terms of Use may be updated from time to time. We encourage you to check back periodically for updates.

Last Updated and Effective As Of: May 20, 2019

 

  1. Policy Overview
  2. Our Information
  3. You Are Responsible For Others Who Access Our Site Using Your Device Or Internet Connection

  4. Availability Of Our Site May Occasionally Be Limited Products
  5. Accuracy Of Billing And Account Information
  6. Promotions / Discount Codes
  7. Optional Tools
  8. Viruses And Other Harmful Content
  9. Third Party Links
  10. User Comments, Feedback Other Submissions
  11. Personal Information & Privacy Policy
  12. We Have A Fraud Protection Program
  13. Errors, Omissions Or Inaccuracies
  14. Disclaimers
  15. Prohibited Uses Of The Site And Its Content
  16. Permitted Use Of Materials On Our Site
  17. Trademarks And Copyrights
  18. Exclusions And Limitations Of Liability
  19. Dispute Resolution
    1. Negotiation
    2. Mediation
    3. Arbitration
  20. Class Action Waiver
  21. Period Of Limitation
  22. Choice of Law
    1. Miscellaneous Provisions
    2. Severability
    3. Waiver
    4. Release And Indemnification
    5. Confidentiality
  23. Entire Agreement

1. POLICY OVERVIEW

These Terms of Use (“Terms of Use”), and any documents referred to herein, set out the terms and conditions on which you are permitted to use Hatchbeauty’s website for HATCHBEAUTY at www.hatchbeautybrands.com (the “Site”).

BY USING THE SITE, YOU AGREE TO BE BOUND BY, AND COMPLY WITH, THESE TERMS OF USE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE OUR SITE.

In addition to these Terms of Use, your use of our Site is governed by our privacy policy, which is available at www.hatchbeautybrands.com/privacy-policy.

Our privacy policy governs our use of your information. It sets out the types of information we collect, the reasons we collect it, how we use it, where we may pass it on to any third parties, in what circumstances and for what reasons, and any other relevant information relating to our use and/or processing of your information and your rights in relation to your information.  Our privacy policy also includes information about cookies on the Site. Our cookies policy governs our use of cookies and similar technologies on our Site. It sets out the types of cookies we use, the purposes for which we use them, the circumstances in which we may place cookies on your computer, device or browser, and other relevant information relating to cookies, such as how to change your browser preferences and settings to accept or reject cookies.

We reserve the right to refuse service to anyone for any reason at any time. You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

By using the Site, you agree to be bound by and comply with each of these policies regardless of whether you have read it in part or in full. Hatchbeauty reserves the right to change or modify any of the terms and conditions contained in the Terms of Use from time to time at any time, without notice (other than updating this Site), and in its sole discretion. If Hatchbeauty decides to change the Terms of Use, Hatchbeauty will post a new version on this Site and update the date set forth above. Any changes or modifications to the Terms of Use will be effective upon posting of the revisions.

YOUR CONTINUED USE OF THE SITE FOLLOWING POSTING OF ANY CHANGES OR MODIFICATIONS CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS AND IF YOU DO NOT AGREE WITH THESE CHANGES OR MODIFICATIONS, YOU MUST IMMEDIATELY CEASE USING THE SITE.

For this reason, you should frequently review these Terms of Use and any other applicable policies, including their dates, to understand the terms and conditions that apply to your use of the Site. We also recommend that you print off a copy of these Terms of Use for your records, as well as any further versions of them.

2. OUR INFORMATION

HATCHBEAUTY PRODUCTS, LLC, including its Affiliates (collectively, "Hatchbeauty", “we”, “us” or “our”) operates this Site.  Hatchbeauty Products, LLC is a Delaware limited liability company. Our address is Hatchbeauty.com, 10951 W. Pico Blvd, Suite 300, Los Angeles, CA 90064.

The Company’s Legal Department may be contacted at: Legal Department, HATCHBEAUTY PRODUCTS, LLC, 10951 W. Pico Blvd, Suite 300, Los Angeles CA 90064. All legal notices shall be sent by registered or certified mail to this address.

3. YOU ARE RESPONSIBLE FOR OTHERS WHO ACCESS OUR SITE USING YOUR DEVICE OR INTERNET CONNECTION

You are responsible for others who access our Site using your device or internet connection
You must ensure that any persons who access our Site on your computer(s) or device(s), or who are permitted or able to access our Site on your computer(s) or device(s), or who use your internet connection, are aware of these Terms of Use and all other documentation referred to in them, and that such persons also agree to be bound by and to comply with these Terms of Use. If for any reason whatsoever, such persons do not agree to these Terms of Use or do not wish to be bound by them, they must not access or use our Site, and you must not permit them to do so.

4. AVAILABILITY OF OUR SITE MAY OCCASIONALLY BE LIMITED

We make no representations and provide no warranties that: (a) the Site will be made available at any specific time or from any specific geographical location; (b) your access to the Site will be continuous or uninterrupted; or (c) the Site will be accessible or optimised on all browsers, computers, tablets, phones or viewing platforms.

We may suspend access to all or part of the Site for any reason, including for business or operational reasons or to resolve any issues that we become aware of.  We will endeavor to provide prior notice if reasonably practicable and if we anticipate the Site will be impacted for a significant time period.

Our Site is provided for users in the United States. Although it may be possible to access the Site from other countries, we make no representation that our Site is compliant with any legal requirements in force in any jurisdiction other than the United States, or that the content available on the Site will be appropriate for users in other countries or states.

By agreeing to these Terms of Use, you represent that you are at least the age of majority in your state of residence, or that you are the age of majority in your state of residence and you have given us your consent to allow any of your minor dependents to use this Site.

5. MORE INFORMATION ABOUT OUR PRODUCTS

Certain products may be available exclusively online through the Site. These products may have limited quantities and are subject to return or exchange only according to our Return Policy.

We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at our sole discretion.

We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Site is void where prohibited.

We do not warrant that the quality of any products, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the service will be corrected.

6. ACCURACY OF BILLING AND ACCOUNT INFORMATION

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

7. PROMOTIONS / DISCOUNT CODES MAY BE LIMITED

Promo codes can be specific to dates, products or minimum total amount. All promotional offers, emails and sales cannot be combined with any other offers. Limit one promo code per order. Promo codes and promotions cannot be used toward gift card purchases. Not valid on past purchases. For questions or assistance with a promo code please contact Customer Service via email at info@hatchbeauty.com or phone at 1-855-895-6980. All promotional codes are subject to change at any time.

8. OPTIONAL TOOLS ARE FOR YOUR CONVENIENCE ONLY

We may provide you with access to third party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third party tools.

Any use by you of optional tools offered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third party provider(s).

We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Use.

9. VIRUSES AND OTHER HARMFUL CONTENT MAY NOT BE PREVENTABLE DESPITE OUR EFFORTS

We do not guarantee that our Site does not contain viruses or other malicious software. However, we do make reasonable efforts to prevent such viruses or bugs from being uploaded to our Site. We are not responsible for any bugs or viruses on our Site, or any software that might be transferred to your computer from our Site, or any consequences which the presence or operation of such programs may have. You must ensure that you have in place up-to-date and effective anti-virus protection on your computer or other browsing device.


You must not use any third parties, software or technology to attempt to gain unauthorised access to our Site, our servers, systems, hardware, software or data. You must not attempt to perform any denial of service type attack on our Site. We may report any breach or suspected breach of this clause (Viruses and other harmful content) to the relevant authorities and may disclose your identity.

10. THIRD PARTY LINKS ARE NOT WARRANTED BY US

Certain content and products and services available via our Site may include materials from third parties.

Third party links on this Site may direct you to third party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third party materials or websites, or for any other materials, products, or services of third parties, nor are we responsible for any data-processing activities carried out by any third party website.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third party websites. Please review carefully the third party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third party products should be directed to the third party.

11. USER COMMENTS, FEEDBACK OTHER SUBMISSIONS

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation to: (1) maintain any Comments in confidence; (2) pay compensation for any Comments; or (3) respond to any Comments.

We may, but have no obligation to, monitor, edit or remove Comments that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Use.

You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related Site. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third party.

12. PERSONAL INFORMATION IS GOVERNED BY PRIVACY POLICY

Your submission of personal information through the store is governed by our Privacy Policy.

13. WE HAVE A FRAUD PROTECTION PROGRAM

As part of our order processing procedures, we screen all received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If such is the case, we may reject your order or our Customer Service department may call you at the phone number you provided (or use your email address) to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.

14. ERRORS, OMISSIONS OR INACCURACIES MAY BE CORRECTED OR UPDATED

Occasionally there may be information on our Site or in the Service 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 in the Service or on any related Site 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 in the Service or on any related Site, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related Site, should be taken to indicate that all information in the Service or on any related Site has been modified or updated.

15. DISCLAIMERS

THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO:
THE SERVICE; THE SITE CONTENT; USER CONTENT; OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE SITE.

IN ADDITION, WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES.

WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND WE SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE.

BY ACCESSING OR USING THE SITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.

WE DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ACTION OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.

16. PROHIBITED USES OF THE SITE AND ITS CONTENT

In addition to other prohibitions as set forth in the Terms of Use, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses, malware, spyware, adware, Trojan horses, worms, logic bombs, keystroke loggers or any other type of malicious code or programs that will or may be used in any way that will affect the functionality or operation of the Service or of any related Site, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related Site, other websites, or the Internet. You are prohibited from using any robots, spiders, data mining or scraping technology or any similar third party tools for the extraction or reproduction of any data or content from our website without our prior written consent. We reserve the right to terminate your use of the Service or any related Site for violating any of the prohibited uses.

17. PERMITTED USE OF MATERIALS ON OUR SITE

The content on our Site is provided for your personal, private and non-commercial use only. You may print or share the content from our Site for lawful personal, private and non-commercial purposes, and you may also make others within your organization aware of the content on our Site. You may not otherwise extract, reproduce, sell, resell, exploit or distribute the content of our Site or any portion of the Service without our express prior written consent.  Whenever you print, download, share or pass on content from our Site to others, you must not make any additions or deletions or otherwise modify any text from our Site, you must not alter or change any images, media or graphics from our Site in any way, you may not remove any accompanying text from such images, media or graphics, and you must ensure that all content passed on to any third party is an accurate representation of the content as it appears on our Site.

18. TRADEMARK AND COPYRIGHT PROTECTIONS PREVENT UNAUTHORIZED USE

All material from the Site is considered property of the Company and unauthorized use of such material is strictly prohibited. This includes any content such as graphics, hyperlinks, images, text, etc. The Company’s trademarks, service marks, and logos and other proprietary designs ("Intellectual Property") used and displayed on the Site are considered property of the Company.  All such rights are protected by intellectual property laws around the world, and all rights are reserved.

No material from our Site may be uploaded, posted, copied, reproduced, distributed or republished in any way. No portion of the Site may be copied, sold, reproduced, duplicated, resold or otherwise exploited for any commercial purpose that is not expressly permitted by the Company. We reserve the right to cancel orders at our discretion if we believe that a customer violates applicable law or acts in a way that is harmful to our interests. There shall be no representation made on the Site that would be construed as granting, by implication or otherwise, any license or right to use any Intellectual Property displayed on the Site. The Company’s Intellectual Property may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits the Company or its products.

19. EXCLUSIONS AND LIMITATIONS OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, WE (INCLUDING OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, INCLUDING DAMAGES ARISING OUT OF CHANGES TO OR TERMINATION OF THE SITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, ACTUAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES. TO THE EXTENT PERMITTED BY LAW, THE LIMITATIONS ON THE COMPANY'S LIABILITY SET FORTH HEREIN SHALL APPLY WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, OR WHETHER IN TORT, CIVIL LIABILITY BY WAY OF NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

BY AGREEING TO THESE TERMS, YOU WILLINGLY AGREE (OR, IF YOU ARE A MINOR, YOUR PARENT OR LEGAL GUARDIAN WILLINGLY AGREES) THAT YOU HAVE RELINQUISHED YOUR RIGHT TO SEEK THESE DAMAGES FROM THE COMPANY AND THAT THIS IS A REASONABLE ALLOCATION OF RISK.

YOU SPECIFICALLY AGREE THAT WE SHALL NOT BE LIABLE FOR ANY CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

YOU AGREE THAT IN THE EVENT THAT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES ARISING OUT OF, OR IN CONNECTION WITH, OUR ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY US, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY US.

TO THE EXTENT THAT ANY OF THE PROVISIONS OF THIS CLAUSE (EXCLUSIONS AND LIMITATIONS OF LIABILITY) ARE UNENFORCEABLE AS OUTRIGHT EXCLUSIONS OF LIABILITY, THEY SHALL BE CONSTRUED AS LIMITATIONS ON LIABILITY, LIMITING OUR LIABILITY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A CONSUMER, THE PROVISIONS IN THESE TERMS OF USE ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAWS OF YOUR STATE OF RESIDENCE.

20. FORM OF DISPUTE RESOLUTION

Any controversy, claim or dispute of whatever nature arising between a user of the Site, on the one hand, and the Company and/or the Related Parties (as defined below), on the other, including but not limited to those arising out of or relating to the Terms of Use or any other relationship of a user of the Site and the Company and/or the Related Parties (for purposes of this Section each is a “party”), whether such claim is based on rights, privileges or interests recognized by or based upon statute, contract, tort, common law, or otherwise (“Dispute”), shall be settled through negotiation, mediation or arbitration, as provided below.  

a. Negotiation

If a Dispute arises, the parties shall first attempt in good faith to resolve it promptly by negotiation. Any of the parties involved in the Dispute may initiate negotiation by providing notice (the “Dispute Notice”) to each involved party setting forth the subject of the Dispute and the relief sought by the party providing the Dispute Notice, and designating a representative who has full authority to negotiate and settle the Dispute. Within ten (10) business days after the Dispute Notice is provided, each recipient shall respond to all other known recipients of the Dispute Notice with notice of the recipient’s position on and recommended solution to the Dispute, and designating a representative who has full authority to negotiate and settle the Dispute. Within twenty (20) business days after the Dispute Notice is provided, the representatives designated by the parties shall confer either in person at a mutually acceptable time and place or by telephone, and thereafter as often as they reasonably deem necessary to attempt to resolve the Dispute.

b. Mediation

At any time twenty (20) business days or more after the Dispute Notice is provided, but prior to the initiation of arbitration, regardless of whether negotiations are continuing, any party may submit the Dispute to JAMS (Judicial Arbitration and Mediation Services - http://www.jamsadr.com) for mediation by providing notice of such request to all other concerned parties and providing such notice and a copy of all relevant Dispute Notices and notices responding to JAMS. In such case, the parties shall cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in promptly scheduling the mediation proceedings, and shall participate in good faith in the mediation either in person at a mutually acceptable time and place or by telephone, in accordance with the then-prevailing JAMS’s mediation procedures and this Section, which shall control.

c.Arbitration

Any Dispute not resolved in writing by negotiation or mediation shall be subject to and shall be settled exclusively by final binding arbitration before a single arbitrator in Los Angeles, California in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association (“AAA”). No party may commence arbitration with respect to any Dispute unless that party has pursued negotiation and, if requested, mediation, provided, however, that no party shall be obligated to continue to participate in negotiation or mediation if the parties have not resolved the Dispute in writing within sixty (60) business days after the Dispute Notice was provided to any party or such longer period as may be agreed by the parties in writing. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. Notwithstanding any contrary rules promulgated by the AAA, the following shall apply to all Arbitration actions:

      • The Federal Rules of Evidence shall apply in all cases;
      • The parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure;  
      • The parties shall be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure;
      • The arbitration shall occur within one hundred-twenty (120) days from the date on which the  arbitrator is appointed, and shall last no more than five (5) business days;
      • The parties shall be allotted equal time to present their respective cases, including cross-examinations.

The arbitrator shall not have the power to alter, modify, amend, add to or subtract from any provision of the Terms of Use, or to rule upon or grant any extension, renewal or continuance of the Terms of Use. Moreover, the arbitrator shall not have the power to award special, incidental, indirect, punitive, exemplary, or consequential damages of any kind or nature, however caused.

All communications, whether verbal, written or electronic, in any negotiation, mediation or arbitration action shall be treated as confidential and those made in the course of negotiation or mediation, including any offer, promise or other statement, whether made by any of the parties, their agents, employees, experts, or attorneys, or by the mediator or any JAMS employee, shall also be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and shall be inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in negotiation or mediation.

The costs of negotiation, mediation, and arbitration, including fees and expenses of any mediator, arbitrator, JAMS, the American Arbitration Association, or other persons independent of all parties acting with the consent of the parties to facilitate settlement, shall be shared in equal measure by the user of the Site, on the one hand, and the Company and any Related Parties involved, on the other. The parties shall bear their own legal fees and expenses of negotiation, mediation and arbitration.

Although the Terms of Use agreement is made and entered into between a user of the Site and the Company, the Company’s affiliates, owners, members, managers and employees (“Related Parties”) are intended third party beneficiaries of the Terms of Use, including this agreement to negotiate, mediate and arbitrate. The parties acknowledge that nothing in these policies is intended to create any involvement by, responsibility of, or liability of the Related Parties with respect to any dealings between a user of the Site and the Company, and the parties further acknowledge that no provision of the  Terms of Use shall be argued by any party to constitute any waiver by the Related Parties of any defense which the Related Parties may otherwise have concerning whether they can properly be made a party to any dispute between a user of the Site and the Company.

Any party may seek specific performance of this Section, and any party may seek to compel each other party to comply with the provisions of this Section by petition to a court of competent jurisdiction in the State of California. The pendency of a mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction in the State of California, and the parties agree not to defend against any application for provisional relief on the ground that a mediation is pending. The prevailing party in any proceeding enforcing the provisions of this Section shall be entitled to recover, from the other party, the reasonable attorneys’ fees and costs incurred by the petitioning party in obtaining the requested relief. If any portion of this Section is held to be unenforceable for any reason, the remainder shall remain in full force and effect.

Nothing in this Section shall preclude any party from seeking interim or provisional relief concerning the Dispute, including a temporary restraining order, a temporary or preliminary injunction, or an order of attachment, either prior to or during negotiation, mediation or arbitration.

21. CLASS ACTION WAIVER

By using the Site and agreeing to these Terms of Use, you understand and agree that you will waive your right to have any dispute or claim brought, heard or arbitrated as a class action, collective action or representative action (the “Class Action Waiver”). Notwithstanding any other clause contained in these Terms of Use or the rules of the American Arbitration Association, any claim that all or part of this Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable must be determined only by a court of competent jurisdiction and may not be determined by an arbitrator.

22. PERIOD OF LIMITATION IS ONE YEAR

Should you bring a claim against the Company for any alleged act or omission of the Company relating to or arising from these Terms of Use, such action must be brought within one year from the date of the alleged conduct giving rise to the cause of action. Failure to bring such action within such time shall bar all claims against the Company for such act or omission. You hereby relinquish and waive all claims permissible by any other applicable statutes of limitation.

23. CHOICE OF LAW

Jurisdiction and venue of any matter not subject to arbitration shall lie exclusively in Los Angeles County, State of California. The Federal Arbitration Act shall govern all matters relating to arbitration. The laws of the State of California shall govern all other matters relating to or arising from the Terms of Use or any element of your relationship with the Company.

24. MISCELLANEOUS PROVISIONS

a. Severability

If any provision of these Terms of Use in its current form or as may be amended is found to be invalid or unenforceable for any reason, only the invalid portion of the provision shall be severed and the remaining terms of the Terms of Use shall remain in full force and effect. The severed provision, or portion thereof, shall be reformed to reflect the purpose of the provision as closely as possible.

b. Waiver

The failure of the Company to partially or fully exercise any rights or remedies that may be available to it, or the waiver of the Company of any breach of these Terms of Use by you shall not prevent a subsequent exercise of such rights by the Company and shall not be deemed a waiver by the Company of any subsequent breach by you of the same or any other provision of the Terms of Use. Our rights and remedies under the Terms of Use and any other applicable agreement between you and the Company shall be cumulative, and the exercise of any such right or remedy shall not limit our ability to exercise a different or additional right or remedy.

c. Release and Indemnification

You (and also any third party for or on behalf of whom you operate an account or activity on the website) agree to indemnify, hold harmless, and defend the Company, its parent, subsidiaries, divisions, and affiliates, and their respective officers, directors, employees, agents and affiliates from any and all claims, liabilities, damages, costs and expenses of defense, including attorneys’ fees, in any way arising from or related to your participation as a user of the Site, your violation of these Terms of Use, any defamatory or infringing content posted by you, any misrepresentation made by you, or your violation of any law or the rights of a third party (including any intellectual property, publicity, confidentiality, property or privacy right).  You will cooperate as fully required by us in the defence of any claim. We reserve the right to assume the exclusive defence and control of any matter subject to indemnification by you, and you will not, in any event, settle any claim without our prior written consent.

d. Confidentiality

You agree that the Company has a proprietary interest in its customer lists and other confidential information described in these Terms of Use or other materials provided to you by the Company. You agree not to use or disclose such confidential information except as explicitly authorized by the Company. Use or disclosure of customer lists for any purpose is strictly prohibited.

e. Entire Agreement

These Terms of Use constitute the entire agreement of the parties with respect to this subject matter and your use of the Site. There are no verbal or written collateral representations, agreements or understandings relevant to this subject matter except as specifically set forth in these Terms of Use.

f. Headings

The headings preceding the text of the paragraphs of this Policy have been inserted solely for convenience of reference and do not affect its meaning, interpretation or effect.