Terms and Conditions - Ella & Oak, LLC
January 1, 2019
The following Terms of Service (“Terms”) between you (“you” or “your”) and Ella & Oak, LLC (“we,” “our,” “us,” or “E&O”) describes the terms and conditions on which you may access and use the E&O website located at ellaandoak.com (the “Site”), and related services including E&O’s rental (try-on) and sale services (together with the Site and the E&O Content, as defined below, the “Services”) of E&O’s products (“Product”). These Terms also apply to in-store rentals and sales by our partners, which are part of the Services. By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms within this agreement (“Agreement”).
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING “I AGREE” OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.
Changing of Terms
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Ella & Oak website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Notice of Agreement to Arbitrate and Class Action Waiver
By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in Section 7 of these Terms below.
- About the Services
- Rental (Try-On) and Sale of Products
- Use of the Services
- Intellectual Property
- Disclaimer of Warranties; Limitation of Liability
- Dispute Resolution, Arbitration and Class Action Waiver
1. ABOUT THE SERVICES
Through the Services, we aim to give you access to beautiful designer gowns and accessories, stylist advice and other content to help you decide which items are perfect for you.
B. Mobile Charges
To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.
Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase any clothing or accessories (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the rental or purchase of any Products, including all legal liability he or she may incur.
D. Modification of the Services or the Terms
E&O may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, E&O will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to E&O upon registration.
2. RENTAL (TRY-ON) AND SALE OF PRODUCTS
A. General Conditions
The Services include the rental and sale of Products. This Section 2(A) sets out terms and conditions that apply to your rental or purchase of any Product.
18 YEARS OR OLDER. Products may be rented or purchased for use by individuals under 18 years of age, but we rent and sell only to adults, who may rent or purchase the Products with a payment card or other approved payment method. By clicking agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting or purchasing the Products as described in these Terms.
LIMITS. You acknowledge and agree that we may place limits on the rental or purchase of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit any rentals or sales of Products for any reason in our sole discretion, including but not limited to availability and geographic concerns. You must return any samples you receive by the third day. Shipping and handling fees may apply and you will pay any such fees charged by E&O.
DELIVERY & TIMING. E&O cannot guarantee delivery days or times on any rental items, orders or services. All products are subject to the additional delivery charge specified on the Site. All deliveries will be through E&O's shipping partners, which may change from time to time at E&O’s discretion. The shipping method used will be at the discretion of E&O.
COLLECTIONS. If you do not pay the amounts you owe to E&O when due, then E&O will need to institute collection procedures. You agree to pay E&O’s costs of collection, including without limitation reasonable attorneys' fees.
COMMUNICATIONS. You consent to receive communications from us, including email, text messages, calls, and push notifications, including for the purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, and providing other information. We may contact you by telephone calls or text messages, including by an automatic telephone dialing system, at any of the telephone numbers provided by you. Standard message and data rates charged by your mobile carrier may apply to the text messages we send you. You may opt out of receiving communications by following the unsubscribe procedures we provide to you. In the case of text messages, you may opt out by replying "STOP" to a text message you receive from us or by emailing firstname.lastname@example.org. You acknowledge that opting out of receiving communications may impact your use of the Services."
B. Rentals (Try-On at Home)
The following additional conditions apply to the rental of any Product. We consider all of our Try-On at Home services to be a “Rental”.
RENTAL FEE. The rental fee (“Rental Fee”) for the Product will be the total of the rental fee, insurance charges and delivery charges listed on the Site for your rental of the Product. When you place your rental order for a Product, you hereby authorize E&O to charge your payment card for the Rental Fee. E&O will charge your payment card the amount of the Rental Fee immediately upon your rental order. A reservation of a Product on the Site is an order for the rental of that Product, regardless of how far in advance that Product is reserved. In addition, at the time of your rental order for a Product, you hereby authorize E&O to charge your payment card for an amount equal to 100% of the original retail value of the Product (when new) set forth on the Site (“Retail Value”) plus applicable sales taxes; provided that E&O will only charge your payment card for an amount greater than the Rental Fee as described below. Rental Fees exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by E&O, shall be paid by you to E&O in connection with your rental order.
CANCELLATION POLICY. You may cancel your rental order subject to the following cancellation fees and policies:
- If you cancel thirty (30) or more days in advance of the delivery date, there is no cancellation fee and you will receive a full refund issued to the payment card you used for the order.
- If you cancel less than thirty (30) days but more than fourteen (14) days in advance of the delivery date, you will not receive any refund, but you will receive a full credit to your E&O account for the Rental Fee associated with the canceled order. This credit can be applied to any future E&O rental.
- If you cancel fourteen (14) or fewer days in advance of the delivery date, you will receive a credit to your E&O account for the Rental Fee associated with the canceled order, minus a cancellation fee of $9.95.
RETURN PACKAGING. With the delivery of the Product, E&O will provide you with a pre-paid, pre-addressed E&O carrying case or mailing envelope (as the case may be) as well as instructions for your use in returning the Products to E&O (“Return Packaging”). The E&O carrying case is not yours to keep. If the E&O carrying case is not returned you will be charged a $50 fee (details below under “Lost Return Packaging”).
RECEIPT OF THE PRODUCTS. Upon delivery, you bear responsibility for the Product(s). You acknowledge that a secure shipping address (“Secure Shipping Address”) is highly recommended. A Secure Shipping Address means a location where an individual can physically receive Product(s). In the event that a Secure Shipping Address is not provided, E&O does not bear liability for Products left unattended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which E&O will not be liable. You will be liable for all such delays and additional delivery fees.
USE OF THE PRODUCTS. You agree to treat the Products with great care, as if it was borrowed from your close friend. You are responsible for loss, destruction or damage to the Products due to theft, mysterious disappearance, fire, major stains or any other cause, scum or dirt, anything that appears as if the gowns were worn outside. If you return a Product that is damaged beyond repair, then you agree that we shall charge you, and you shall pay, for the price for repairing or replacing the Product, as determined in our discretion, up to the Retail Value for the Product.
RETURN OF THE PRODUCTS; EXTENSIONS. You agree to return the Products to E&O in the Return Packaging on or before the return date for the Products that are identified in the online invoice for your order. You may extend your order for a Product only via phone or email to E&O; provided that any extensions are subject to other orders for that Product and to pre-payment of the additional Rental Fee applicable to that Product for the period of time of the extension. You must return the Product by delivering the Product in the Return Packaging to a USPS or FedEx (please take note on your shipping label) store located in the United States by 12 p.m. on or before the date that the Product is due. We are not responsible for any personal or other items left in the Products or which are returned to E&O in the Return Packaging. If you believe you have accidentally or otherwise sent us any such items, please contact customer service as soon as possible at email@example.com. Our staff may assist in attempting to locate such items at a customer’s request, but are not obligated to and assume no liability for doing so.
LATE FEES. If you return the Products late, a late fee of fifty dollars ($50.00) will be charged to the payment card you used to pay the Rental Fee or to any other payment card included in your account information that you have provided to E&O for every day that you are late returning the Products, and you agree to pay such late fees, up to an amount not to exceed 100% of the Retail Value plus applicable sales tax (plus the Rental Fee). The late fee is payable for each order of Products that is not returned when due, not for each Product that is the subject of the order that is late. If you have not returned a Product within twenty (20) days after the return date for the Product, your late return will be considered a non-return and E&O will charge your payment card the maximum late fee set forth in this Section 2(B), less any late fees that you have already paid, plus applicable sales tax.
PAYMENT OF 100% RENTAL VALUE E&O will not charge you for more than an amount equal to 100% of the Retail Value plus the Rental Fee, in the aggregate, for any charges arising under this Section 2(B), excluding collection costs. If you pay E&O an amount equal to 100% of the Retail Value under this Section 2(B) and you still possess the Product, the Product is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
LOST RETURN PACKAGING. If you lose the Return Packaging, you will be responsible for returning the item at your own expense by the expected return date, and providing E&O with a tracking number. Also, if you lose or fail to return the E&O carrying case you will be charged $50. If you still possess the E&O carrying case, it is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
LIMITED WARRANTIES. The following are the limited warranties E&O provides in connection with Product rentals. E&O’s liability to you for failure to comply with any of these warranties is limited to timely delivery of Product conforming to the warranties or a refund of the Rental Fee (excluding insurance and delivery charges) as determined by E&O.
- CORRECT PRODUCTS. Subject to availability, we will deliver the Products you ordered, including the specified size, color and design, on or before the delivery date for which you ordered them, except in the rare event that the Product is damaged beyond repair or there is an occurrence subsequent to the placing of the order that prevents timely delivery. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any available rental Product to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a replacement product of the same or greater value. Products may appear different in color and style than as displayed on the Site.
- CLEAN AND READY TO WEAR. E&O inspects each Product with the utmost care, but use of the Product is at your own risk and E&O shall not be held liable for any health-related complaints or issues associated with any Product.
The following additional conditions apply to the sale of any Product.
ALL SALES ARE FINAL AND QUALITY CHECKED BY BOTH DESIGNER AND E&O. You acknowledge and agree that only those Products designated by us on the Site as available for purchase are eligible for purchase by you. E&O will inspect the Products before they are delivered to you. However, all Products are sold without any warranty whatsoever, and all Product sales are final.
PURCHASE PRICE. The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges listed on the Site in connection with your purchase of the Products. Purchase Price is as listed on the E&O website at the time of purchase, and is subject to change. E&O reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order for a Product, you hereby authorize E&O to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Purchase Prices exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by E&O, shall be paid by you to E&O in connection with your purchase order. Purchases are final and cannot be canceled.
D. Gift Cards
GENERAL CONDITIONS. The following additional terms and conditions apply to the sale, use and redemption of E&O physical gift cards and electronic-only “digital” gift cards and gift credits (collectively, “Gift Cards”). Purchase and use of a Gift Card constitutes acceptance of these terms. In addition to the terms in this Section the purchase, use and redemption of Gift Cards is considered part of the Services subject to these Terms generally.
REDEMPTION AND USE. Gift Cards may be purchased online. Gift Cards are redeemable only for eligible services and merchandise through ellaandoak.com or E&O retail locations. Limits may apply to Gift Card redemption and use. A Gift Card cannot be used to purchase other Gift Cards. When a Gift Card is redeemed, the value of the rental or purchase plus any shipping/handling fees and sales tax will be deducted from the currently available Gift Card balance.
ADDITIONAL TERMS FOR DIGITAL GIFT CARDS. Digital gift cards are only issued electronically; no physical card will be provided. The digital gift card number will be delivered to the recipient’s email address that purchaser provides at time of purchase of the digital gift card. Purchaser is responsible for providing an accurate and deliverable recipient email address. The recipient will usually receive a digital gift card via email within 24 hours, or on the delivery date, the purchaser chooses. Digital gift cards may be redeemed by providing the digital card number at the time of checkout online or at an E&O retail location.
EXPIRATION AND FEES. The Gift Cards do not expire, and are not subject to any fees. Gift Cards are not redeemable or exchangeable for cash (except as required by law). Gift Cards cannot be reloaded and are not refundable. Gift Cards cannot be transferred for value.
LOST, STOLEN, OR DAMAGED CARDS; UNAUTHORIZED USE. You should treat your Gift Card like cash and protect it accordingly. Title to and risk of loss for Gift Cards passes to the purchaser upon sale. E&O reserves the right to refuse to accept Gift Cards that E&O believes were fraudulently obtained.
E&O is not responsible if a Gift Card is lost, stolen, destroyed, damaged, or used without permission. Gift Cards will be replaced if lost, stolen or damaged only with proof of purchase and only for the value shown on E&O’s records. E&O is not responsible if your Gift Card is used without your permission.
LIMITATION OF LIABILITY. IN ADDITION TO THE LIMITATIONS OF LIABILITY STATED IN SECTION 6(C), IN THE EVENT THAT E&O IS FOUND LIABLE TO YOU FOR A CLAIM ARISING FROM A GIFT CARD, YOUR SOLE REMEDY WILL BE TO RECOVER ACTUAL AND DIRECT DAMAGES WHICH SHALL NOT EXCEED THE LAST BALANCE HELD ON YOUR GIFT CARD.
CUSTOMER SERVICE; CHECK BALANCE. For assistance or to check Gift Card balance, email firstname.lastname@example.org.
- Use of the Services
A. E&O Content
CONTENT PROVIDED “AS IS.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“E&O Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The E&O Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any E&O Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the E&O Content.
UPDATES. We may update the E&O Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to email@example.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
B. Third Party Content
LINKS TO THIRD-PARTY WEBSITES. The Services may contain links or references to non-E&O websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and E&O is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from E&O, and E&O has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that E&O endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
C. Acceptable Use Policy
USE OF E&O CONTENT. No part of the Services, including the E&O Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that E&O authorizes you to view, copy, download, and print E&O Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the E&O Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the E&O Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the E&O Content.
USE OF THE SERVICES. You may not use the Services to: (i) transmit any content, information or other materials that are, or which E&O considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a E&O representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 18 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.
You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
INDEMNIFICATION FOR BREACH. By using the Services, you agree to indemnify, hold harmless and defend E&O and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.
D. Your Content
If you post, upload or make available to E&O or the Services, or otherwise submit to or through E&O as part of your use of the Services, including the Site, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to E&O a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize E&O to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
E. Your Account
Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify E&O promptly of any unauthorized use of your account or password.
There may be delays, omissions, or inaccuracies in the Services, including the E&O Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
G. Job Postings
E&O may list open employment positions on or through the Services. These postings are for informational purposes only and are subject to change without notice. You should not construe any information on or made available through the Services as an offer for employment or promotion or solicitation for employment not authorized by the laws and regulations of your locale.
- INTELLECTUAL PROPERTY
A. Ownership of the Services
The Services, including the E&O Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of E&O and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “Ella & Oak” and the E&O logo are registered trademarks of Ella & Oak, LLC., under the applicable laws of the United States and/or other countries. Other E&O product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of E&O and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. E&O and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.
Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any E&O Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of E&O or such third party that may own such E&O Content.
B. Services License
Subject to your compliance with these Terms, E&O grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that E&O may use your Feedback without restriction or obligation to you or any third party.
You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at firstname.lastname@example.org. You understand that Your Content may continue to exist and be used on or through the Services even after such deactivation.
B. Termination By E&O
Any violation of these Terms, may result in suspension or termination of your access to the Services and/or removal of Your Content. E&O may also terminate your account if E&O determines that your conduct poses a risk or liability to E&O, or for any other reason as determined by E&O in its sole discretion.
C. Effects of Termination
In each of these cases under Section 5(A) and (B), the Terms will terminate, including your license to use the Services, except that the following sections shall continue to apply: Sections 2(A) (Collections), 2(B) (Rental Fee, Late Fees, Lost Return Packaging), 2(C) (Sales), 3(A) (Failure to Pay Fees), 4(A) (Ownership of Services), 4(C) (Feedback), Section 6 (Disclaimer of Warranties; Limitation of Liability, Section 7 (Dispute Resolution, Arbitration, and Class Action Waiver), including the mandatory arbitration and class-action waiver provision, and Section 8 (Miscellaneous).
- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
A. Limited Warranties
The limited warranties set out in Section 2(B) for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by E&O in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms.
Your sole and exclusive remedy and E&O's sole and exclusive liability for a breach by E&O of the limited warranties set out in Section 2(B) shall be, at E&O's option, E&O's use of its commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of your Rental Fee, as applicable (excluding insurance and delivery charges).
B. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, E&O DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE E&O CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
C. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL E&O BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF E&O HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 6(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
- DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
This Section 7 includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
A. Informal Process First
Both you and E&O agree that in the event of any dispute between us, you and E&O will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
B. Mandatory Arbitration of Disputes
All disputes between you and E&O will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of E&O or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either E&O or you pursuant to the following conditions:
(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will be conducted at a JAMS facility in your area or at a JAMS facility in New York City or Seattle, Washington.
(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
(e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, with E&O remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.
(f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions.
C. Class Action Waiver
The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and E&O shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
JURISDICTIONAL ISSUES. E&O makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that E&O intends to announce or make available such products or services to the general public, or in your country. Contact E&O at email@example.com to determine which products and services may be available to you.
EXPORT LAWS. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the E&O Content, or any part thereof, in any way, in violation of United States law.
GOVERNING LAW AND VENUE. These Terms are governed and interpreted pursuant to the laws of the State of Oregon, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in Portland, Oregon, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
ENTIRE AGREEMENT. These Terms are the entire agreement between you and E&O relating to the subject matter herein and shall not be modified except by E&O in accordance with these Terms, or as otherwise agreed in writing by you and E&O. No employee, agent or other representative of E&O has any authority to bind E&O with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
SEVERABILITY AND WAIVER. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
ASSIGNMENT. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. E&O may assign these Terms at any time without notice to you.
FORCE MAJEURE. E&O will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond E&O’s reasonable control.
CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to E&O at firstname.lastname@example.org or Ella & Oak, LLC., Attn: Legal, 2124 NW High Lakes Loop, Bend, OR 97703.