Terms of service
Last Updated: July 13, 2020
This Service is operated by ILIA Beauty. These Terms of Service (“Terms” or “Terms of Service”) govern your use of our website(s), products, services and applications (the "Service"). Throughout the site, the terms “we”, “us” and “our” refer to ILIA Beauty.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
1. ACCEPTANCE OF TERMS
By using our Service, accessing the website, and/ or purchasing something from us, you agree to be bound by these Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. Any new features or tools which are added to the current store shall also be subject to the Terms of Service. These Terms apply to all users of the Service, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content. If you do not agree to all the terms and conditions of these Terms, then you may not access the Service. If these Terms are considered an offer, acceptance is expressly limited to these Terms.
2. GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
By agreeing to these Terms of Service, you represent that you are over 13 years old and at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You warrant and represent that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changed to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
3. ILIA BEAUTY ACCOUNT
You may be required to create an account to use some of the features of the Service. You must keep your password confidential and you are solely responsible for maintaining the confidentiality and security of your account, all changes and updates submitted through your account, and all activities that occur in connection with your account. In creating an account, you represent to us that all information you provide in such process is true, accurate and correct, and that you will update your information as necessary to keep it accurate. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information. You agree to notify us immediately of any unauthorized use of your account by contacting us at the information provided below and to change your password. You may not transfer your account to anyone else without our prior written permission.
4. PLACING AN ORDER ON THE SERVICE
Order Acceptance and Billing
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.
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.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s). You will not be charged for most orders until the order has shipped.
Prices for our products are subject to change without notice. ILIA Beauty cannot confirm the price of an item until after your order is placed. Pricing errors may occur on the Service. ILIA Beauty reserves the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from ILIA Beauty. ILIA Beauty may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products on the Service may differ from pricing for product sold in stores.
Title and Risk of Loss
All items purchased through the Service are made pursuant to a shipment contract. The risk of loss and title for such items pass to you upon our tender of the item to the carrier.
Refunds & Exchanges
Returns and refunds are available only as described in our Return Policy. While we will strive to provide returns and refunds, excessive or abusive returns or attempted returns will void our Return Policy and any guarantees on future orders.
5. ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
ILIA Beauty does not warrant that information made available on this site is accurate, complete, reliable, error-free or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
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.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
6. MODIFICATIONS TO THE SERVICE AND PRICES
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
7. PRODUCTS OR SERVICES
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We reserve the right, but are not obligated, to limit the sales of our products or services 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 or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. 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.
8. INTELLECTUAL PROPERTY RIGHTS
All content on the Service (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, information, code and software, and the selection and manner of compilation and presentation) (the “Content”), is owned by ILIA Beauty, other content providers, or their licensors, and may be protected by copyright, trademark, and other applicable laws.
Your access to and use of the Service does not grant you any license or right to use any trademark, logo, or service mark displayed on the Services. ILIA Beauty, other content providers, or their licensors retain full and complete title to and reserve all rights in the material on the Service, including all associated intellectual property rights. ILIA Beauty neither warrants nor represents that your use of materials on the Service will not infringe rights of third parties.
You may access the Services only for your personal and non-commercial use, and you may not modify or delete any copyright, trademark or other proprietary notice relating to the material you access.
All software used on the Service is the property of ILIA Beauty or our licensors and protected by United States and international copyright laws. Subject to these Terms, ILIA Beauty hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable license to use the Service for your personal, noncommercial use only. This license does not include any: (i) resale or commercial use of the Service; (ii) any collection and use of any product listings, descriptions, or prices; (iii) any derivative use of the Service; (iv) any downloading or copying of account information for the benefit of another merchant; or (v) any use of data mining, robots, or similar data gathering and extraction tools. You may not attempt to discover any source code, modify, publish, adapt, transmit, participate in the transfer or sale of, exhibit, distribute, display, reverse engineer, decompile, dissemble, perform, reproduce, create derivative works from, or in any way exploit any of the Service, in whole or in part. Downloading or copying the Service (including the Content) for other than personal use is expressly prohibited without the prior written permission of Service or any other copyright owner. You acknowledge that you do not acquire any ownership rights by accessing, downloading, or copying any of the Service (which includes the Content), nor may you frame or utilize framing techniques to enclose any trademark, logo, or copyrighted material from the Service or use any meta tags or any other hidden text utilizing our names or trademarks, without the express written consent of ILIA Beauty.
Without ILIA Beauty’s prior permission, you agree not to display or use in any manner the ILIA Beauty marks.
All rights not expressly granted herein are reserved. You agree to abide by all additional restrictions displayed on the Service as they may be updated from time to time.
9. NO RESALE OF SERVICES
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the Service is provided, without express written permission by us.
10. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you are a copyright owner or an agent thereof and believe that any content, information, or communication on the Service infringes upon your copyrights, you may submit a written notice of infringement pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the "DMCA"). All notices of infringement should be sent to the Designated Agent of ILIA Beauty identified below and should include the following information: (a) an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest, (b) a description of the copyrighted work that you claim has been infringed, (c) a description of where the material that you claim is infringing is located on the Service, (d) your address, telephone number, and e-mail address, (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Notices of infringement should be directed to the following Designated Agent of ILIA Beauty:
ILIA Beauty Attn: Copyright Agent 1100 S Coast Hwy, Suite 318 Laguna Beach, CA 92651 firstname.lastname@example.org
If you submit a notice of infringement that knowingly materially misrepresents that any content, information, or communication on the Service is infringing upon a copyright, you may be held liable for damages and attorneys’ fees. If you believe that your content, information, or communication has been removed from the Service due to an erroneous claim of infringement, you may have remedies available to you under the DMCA.
11. RESTRICTIONS ON ACCESS AND USE
You agree to use the Service for your own internal and personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with these Terms, applicable policies and all laws that apply to you. If your use of the Service (including a purchase of any items on the Service) is prohibited by any applicable laws, then you aren't authorized to use the Service. We are not responsible if you use the Services in a way that breaks the law.
You must not create multiple accounts and you must not let others use your account. You're responsible for any activity associated with your account.
When accessing or using the Service, you agree to:
Abide by all laws, rules, regulations, these Terms, and all ILIA Beauty policies;
Only purchase items you are legally able to purchase in your jurisdiction;
Only use (or attempt to use) the Service through interfaces provided by ILIA Beauty; and
Comply with the instructions in any robots.txt file present on the Service.
When accessing or using the Service, you agree not to:
use the Service or any of our products for any unlawful or unauthorized purpose;
solicit others to perform or participate in any unlawful acts;
violate any international, federal, provincial or state regulations, rules, laws, or local ordinances;
infringe upon or violate our intellectual property rights or the intellectual property rights of others;
harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
submit false or misleading information;
submit objectionable content, including profanity, obscenity, lasciviousness, violence;
upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet;
collect or track the personal information of others;
spam, phish, pharm, pretext, spider, crawl, or scrape;
use the Service for any obscene or immoral purpose; or
interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet.
We reserve the right to terminate your use of the Service or any related website or service for violating any of the prohibited uses or these Terms.
12. OPTIONAL TOOLS
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).
13. THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third parties. In addition, 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.
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 materials or 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.
14. USER COMMENTS, FEEDBACK AND 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 (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content 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. 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 website. 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.
15. PERSONAL INFORMATION
ILIA Beauty may communicate with you using email or autodialed or prerecorded calls and text messages, at any telephone number that you provide us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
If you would like to receive marketing via mobile texts and alerts, you may sign up to do so. By signing up, you provide your consent to receive recurring autodialed marketing texts or other mobile messages from or on behalf of us at the mobile number you've provided. You understand that consent is not a condition of purchase. Message and data rates may apply. If you would like to be removed from the ILIA Beauty marketing text list, you must reply STOP to any mobile message. You understand and agree that the foregoing option is the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
If at any time you intend to stop using the mobile telephone number that has been used to subscribe to text messaging, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the user opt out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your account or these Terms.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
ILIA Beauty may route phone and text communications through a third party service provider, and we or the service provider may record telephone conversations you have with ILIA Beauty or its agents for quality control and training purposes, or for our own protection.
17. ERRORS, INACCURACIES AND OMISSIONS
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 website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
18. DISCLAIMER OF WARRANTIES
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.
WE DO NOT WARRANT THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY US) ARE PROVIDED 'AS IS' AND 'AS AVAILABLE' FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICE, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
19. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO CASE SHALL ILIA BEAUTY, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICE OR ANY PRODUCTS PROCURED USING THE SERVICE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT ILIA BEAUTY IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO ILIA BEAUTY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF ILIA BEAUTY FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY ILIA BEAUTY’S GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY ILIA BEAUTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ILIA BEAUTY AND YOU.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT'S "ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS." SIMILARLY, THIS SECTION DOES NOT LIMIT ILIA BEAUTY’S TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM ILIA BEAUTY’S OWN INTENTIONAL OR RECKLESS CONDUCT.
To the fullest extent allowed by applicable law, you agree to indemnify, defend and hold harmless ILIA Beauty and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms or the documents they incorporate by reference, or (c) your violation of any law or the rights of a third-party. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
ILIA Beauty reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ILIA Beauty in asserting any available defenses. This provision does not require you to indemnify ILIA Beauty for any unconscionable commercial practice by ILIA Beauty or for ILIA Beauty 's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms or your access to the Service, including the purchase of any items on the Service.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold ILIA Beauty and its parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use our Service, or when you cease using our Service. We are also free to terminate (or suspend access to) your use of the Service or your account, for any reason in our discretion, including your breach of these Terms. We have the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Even after your right to use the Service is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to ILIA Beauty for items purchased will remain due.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding arbitration and class action waiver.
22. NO THIRD PARTY BENEFICIARIES
These Terms are not enforceable by or for the benefit of any third party.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION ("ARBITRATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH ILIA BEAUTY AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
YOU AND ILIA BEAUTY AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED THROUGH THE SERVICE, THESE TERMS, OR CONTENT (A "DISPUTE" AS DEFINED BELOW) SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, AS DETAILED BELOW.
You and ILIA Beauty agree that these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
"Disputes" shall include, but are not limited to, any claims or controversies between you and ILIA Beauty against each other related in any way to or arising out of in any way from the Service or the Content including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and ILIA Beauty, even if the claim arises after you or ILIA Beauty has terminated use of Services or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that ILIA Beauty brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and ILIA Beauty, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with ILIA Beauty; (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. “Disputes” does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets, claims of piracy or unauthorized use of intellectual property (collectively, “intellectual property claims”).
b. Initial Dispute Resolution
Most disputes can be resolved without resort to litigation. You can reach our support department at email@example.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with our support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
c. Binding Arbitration Process and Procedure
Except as provided herein, if we cannot resolve a Dispute informally, any Dispute will be resolved only by binding arbitration to be held in the county in which you reside. For residents outside the United States, arbitration shall be initiated in Los Angeles, California. ILIA Beauty and you further agree to submit to the personal jurisdiction of any state or federal court in Los Angeles County, California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
To begin an arbitration proceeding, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, California 94111; and (c) send one copy of the Demand for Arbitration to 1100 S Coast Hwy, Suite 318, Laguna Beach, CA 92651.
The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS' most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state's law.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, ILIA Beauty will pay the additional cost. ILIA Beauty shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be frivolous or asserted or conducted for an improper purpose. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney's fees and expert witness costs unless ILIA Beauty is specifically required to pay such fees under applicable law.
If ILIA Beauty's or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
You or ILIA Beauty may choose to pursue a claim in small claims court where: (a) jurisdiction and venue over you and ILIA Beauty otherwise qualifies for such small claims court; (b) such claim advances only on an individual (e.g. non-class, non-representative) basis; and (c) where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to provide ILIA Beauty with advance notice by email to firstname.lastname@example.org and by mail to ILIA Beauty,1100 S Coast Hwy, Suite 318, Laguna Beach, CA 92651.
These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against ILIA Beauty on your behalf.
d. Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable or whether any claims are not subject to Arbitration. The arbitrator will decide the rights and liabilities, if any, of you and ILIA Beauty. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
e. Waiver of Jury Trial
YOU AND ILIA BEAUTY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and ILIA Beauty are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
f. 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out. Your notice must be sent via email to email@example.com and to: ILIA Beauty, 1100 S Coast Hwy, Suite 318, Laguna Beach, CA 92651 within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your account (if you have one), your signature, and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
g. Parents, Subsidiaries, Affiliates
This Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of ILIA Beauty, or any employee, officer, director, or investor of ILIA Beauty, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Service, any person's access to and/or use of the Service, and/or the provision of content, products, services, and/or technology on or through the Service.
h. Parents, Subsidiaries, Affiliates
ILIA Beauty will provide thirty (30) days’ notice of any changes to this section by posting on the Service, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the applicable website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the sections entitled "Arbitration" and "Class Waiver" and the court or arbitrator shall apply the first Arbitration and Class Action Waiver sections in existence after you began using the Service.
Subject to the section titled "Waiver of Class or Consolidated Actions," if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
j. Survival of Agreement
This Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with ILIA Beauty.
24. WAIVER OF CLASS OR CONSOLIDATED ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
ILIA Beauty and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. ILIA Beauty and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party. If an Arbitrator or a Court determines that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then the portion of the claim seeking that remedy (and only that portion of the claim) must be severed from the arbitration and may be brought in court. All other claims shall remain subject to arbitration solely on an individual basis.
The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other ILIA Beauty users, and cannot be used to decide other disputes with other users.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in San Francisco, California.
If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of ILIA Beauty, or any employee, officer, director, or investor of ILIA Beauty, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Services.
Electronic Communications. You agree to receive communications from ILIA Beauty electronically, such as emails, texts, mobile push notices, or notices and message on the Service, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that ILIA Beauty provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Service account, in any way (by operation of law or otherwise) without ILIA Beauty’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Force Majeure. ILIA Beauty shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Choice of Law. These Terms and any dispute of any sort that might arise between you and ILIA Beauty will be interpreted in accordance with the law of the State of California and the United States of America, consistent with the Federal Arbitration Act, without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
Exclusive Venue. Any claim or dispute that between you and ILIA Beauty that arises out of or is related to the Service and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Los Angeles County, California, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Los Angeles County, California.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Notice. Where ILIA Beauty requires that you provide an email address, you are responsible for providing ILIA Beauty with your most current email address. In the event that the last e-mail address you provided to ILIA Beauty is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, ILIA Beauty’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to ILIA Beauty at the following address: ILIA Beauty,1100 S Coast Hwy, Suite 318, Laguna Beach, CA 92651. Such notice shall be deemed given when received by ILIA Beauty by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Export Control. You may not use, export, import, or transfer the Service, including the purchase of any products or service on the Services except as authorized by U.S. law, the laws of the jurisdiction in which you used the Service or purchased any products or services on the Service, and any other applicable laws. In particular, but without limitation, the Services, including any products or services purchased on the Service, may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services or purchasing products or services on the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service nor the products or services purchased on the Services for any purpose prohibited by U.S. law.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. These Terms and any policies or operating rules posted by us through the Service constitute the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). These Terms shall not be modified by any of: (i) course of performance between the parties; (ii) course of conduct or dealing between the parties; or (iii) applicable trade practice.
Waiver. The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
Severability. Subject to Section 23 (Arbitration), in the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
Interpretation. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
Section Titles. The headings used in the Terms are included for convenience only and will not limit or otherwise affect these Terms.
26. CHANGES TO TERMS OF SERVICE
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms. The most current version of the Terms will be posted on the Service and it is your responsibility to check our website periodically for changes. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Service or via email. Your continued use of the Service following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, you may not use the Service.
27. CONTACT INFORMATION
If you have any questions or concerns with respect to these Terms or the Service, or to report any violations of these Terms, please contact us at: firstname.lastname@example.org.