Last updated: October 26, 2019
These terms and conditions of service (these “Terms of Service”) govern each user’s (“User(s),” “you” or “your”) use of the ELSAB STYLING e-commerce platform owned and operated by ZAZ, LLC ( “ZAZ, LLC,” “we,” “us,” “our”) and made available to Users via computer and mobile device on the https://elsabstyling.com website (the “Site”) and the related pages, links, content, features, products, software, tools and services offered to Users accessing the website (collectively, the “Service”).
Your use of the Service is expressly conditioned upon your agreement to abide by all of (I) these Terms of Service, as well as our (II) privacy policy located at https://elsabstyling.com/privacy-policy/ (“Privacy Policy”), and (III) policy regarding the use of cookies located at https://elsabstyling.com/cookies-policy/ (“Cookies Policy”) in each instance, as the same may be modified from time to time by us (with or without notice to you and in our sole discretion), and which are incorporated herein by this reference (together, the “Agreement”).
1 – Approval of the Terms and Conditions of this Agreement
Before being able to use the Service, you will need to agree with the terms and conditions of this Agreement. The Service or this Agreement may be modified, updated and/or superseded at any time by us, without notice to you, provided that a current version of this Agreement, with the date of last revision thereof, shall be posted on the Site at all times. You may also receive a notice of the same via e-mail, but regardless, it is your responsibility, and you are hereby encouraged, to periodically review the date of last update of this Agreement by consulting the Terms of Service, the Privacy Policy and the Cookies Policy available on the Site at https://elsabstyling.com/terms-of-service, https://elsabstyling.com/privacy-policy/ and https://elsabstyling.com/cookies-policy, respectively, to ensure your continued compliance with this Agreement. By using the Service after any such modifications, you will be deemed to have accepted the new Terms of Service, Privacy Policy and/or Cookies Policy, as modified.
By accessing the Site and/or clicking “I accept” at the end of this Agreement, you acknowledge and agree that: (I) you have read this Agreement carefully and in its entirety, INCLUDING THE MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER SET FORTH BELOW; (II) you fully understand the terms of this Agreement, AND THAT THIS AGREEMENT ASKS THAT YOU GIVE UP SUBSTANTIAL RIGHTS BY SIGNING IT; (III) you are signing it freely and voluntarily without any inducement; (IV) you will abide by all of the Terms of Service, the Privacy Policy and the Cookies Policy contained in this Agreement, and to the Terms of Service, Privacy Policy and Cookies Policy that will then be in effect at the time you use the Service, and for this purpose, your use of the Service shall be deemed an express approval of all such terms and conditions, and an acknowledgement of your satisfaction with the Service, as the same may be amended from time to time; and (V) if you do not agree with any subsequent change to this Agreement, we urge you to please refrain from accessing the Site and using the Service and your only option will be to immediately cease using the Service.
2 – Elsa B. Styling Services
Elsa B. Styling is an e-commerce platform where Users are able to select and purchase certain personalized, professional styling services (“Styling Services”) offered by eco-conscious, personal stylist and fashion entrepreneur Elsa Boutaric (“Elsa B.”). The Styling Services are available for men and women, both in person and online.
Elsa B.’s goal is to create beautiful, fashionable looks and environmentally sustainable wardrobes for her clients that are inspired by, and are a vibrant expression of, each person’s unique sense of style and personality. Elsa B.’s creations are truly bespoke works of love dedicated to meet each client’s taste and desires.
The Site allows you to select from a menu listing available Styling Services options for purchase. Once you have selected a Styling Service, you will be able to book a session with Elsa B. and pay for the order online through the payment portal available on, or linked to, the Site. Once payment is processed, we will then e-mail you a confirmation of the booking. Styling Services availabilities are managed in real-time but no booking will be final until you receive an e-mail confirmation of that booking from us.
3 – Service Intended for Personal Use
The Service and Styling Services are only intended for the personal use of the Users, and not for commercial use, without our prior written consent.
4 – Eligibility to Use the Service
As a condition to being allowed to use the Service and Styling Services provided by us you must be at least eighteen (18) years of age (we reserve the right to request proof of age at any time if we suspect that a minor may be using the Service and delete any personal information and other content or data belonging to a minor, in accordance with our Privacy Policy) and satisfy certain additional criteria, including the conditions enumerated below, as well as being capable and willing to comply with such requirements and terms and conditions as may be imposed by any applicable third-party online payment platform available through the Site.
By accessing the Service, you hereby represent and warrant to us as follows:
(I) you are of legal age in the jurisdiction in which you reside (but in no event younger than eighteen 18 years old), and that you have the right to enter into an enforceable contract in such jurisdiction;
(II) you are an individual and not a business (except with our prior written consent);
(III) all of the personal information you submit to us is and will remain at all relevant times accurate and truthful; and
(IV) you agree to take full legal responsibility for your access to, and use of, the Site and the Service.
5 – User Account
Before being able to use part of the Service, you will be asked to register with us and provide certain personal information to us, such as your name, gender, age, physical address, phone number and a valid e-mail address, and certain other information in order to create a personalized profile on the Site (the “User Account”).
The creation of a User Account is free of charge. Each User is limited to one User Account. All confirmations and other communications from us relating to the Service will be effected via e-mail. You are obligated to ensure that you provide us with a valid and current e-mail address at all times. You are also solely responsible for maintaining the confidentiality of your User Account, login credentials and passwords, and for all use of the same, whether or not you have authorized access and/or use of your User Account. We do not guarantee that the Site will be accessible from anywhere, available at all times and/or compatible with all devices or mobile carriers.
We reserve the right to refuse access to the Service to any User whose User Account is not in good standing and/or does not comply with this Agreement, as determined by us in our sole and absolute discretion.
6 – Payments
All Styling Services are to be prepaid by at the time of booking and all payment transactions will be directed to and processed through PayPal®, a leading third-party online payment processor (“PayPal”).
Prior to being able to use the PayPal payment portal, you will need to register an account with PayPal. All payment transactions will be subject to the specific terms and conditions included in a separate agreement to be entered by and between you and PayPal.
We cannot be responsible or liable for any dispute between you and such third-party payment processor, including, without limitation, if an attempted payment on the payment portal fails to complete because the transaction is denied by your debit card, credit card or financial institution due to a variety of reasons such as, without limitation, you have insufficient funds in your account, the transaction is above your credit limit or overdraft protection of your account, your payment account information is inaccurate or outdated, or otherwise.
You are solely responsible, and in no circumstances can we be liable, for any overdraft charges, late fees and other fees and/or penalties assessed by your financial institution in connection with any improper use of your cards or you bank account in connection with the Service.
If you do not wish to keep your PayPal payment account active, it is your responsibility to deactivate it.
7 – Refunds
No payments processed on the payment portal are refundable except that you will be entitled to a full refund of any prepaid Styling Services in the event (I) you have received notification that Elsa B. will not perform any such services; (II) your account is terminated by us without any fault on your part prior to the completion of any such services; (III) we opt to terminate or interrupt the Site or the Service, either temporarily or permanently at any time prior to the completion of any such services. We will notify you via e-mail if you are eligible for a refund and promptly arrange for such refund through our payment portal.
8 – User Content
Once you have created a User Account, you may be asked to (I) fill out a questionnaire to identify certain information about you on your profile page, which will enable Elsa B. to tailor the Styling Services to your preferences, (II) upload pictures and photos on your profile page, (III) post and publish information or other materials that you are willing to share with Elsa B. on the Site, and (IV) create links thereto (all of which shall collectively be referred to as “User Content”). You understand that you have a responsibility to ensure that your User Content is in compliance with our Code of Conduct (as defined below) and, also that you have sufficient legal rights in such User Content, in each instance, before submitting the same to be viewed on the Site; in each instance in order to avoid potential adverse consequences such as the suspension or termination of your User privileges with us, and in some situations where you have violated applicable laws and/or other persons’ legal rights, the start of legal proceedings against you. For example, you do not have the right to upload photos featuring other people, post other people’s copyrighted or trademarked materials, etc.
To the extent that you are and remain in compliance with applicable laws regarding your User Content, including but not limited to compliance with applicable intellectual property laws, your User Content will remain your property at all times whether or not posted on the Site. You understand and agree, however, to grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, transferable and sub licensable license to all of your User Content, so that we may use, reproduce, distribute, display, publish, create derivative works of, or otherwise make available the same to the public through the Site or any other existing or future media or device whatsoever.
You are solely responsible for (y) the content that you post, upload or publish on the Site and/or in connection with the Service, including such public content that you generate outside of the Site (such as on other websites, social media, blogs, articles, etc.); and (z) for your interactions with Elsa B.
You further understand and agree that we reserve the right to remove any of your User Content from the Site at any time, without saving any back-up thereof, for any reason or no reason and without prior notice to you.
9 – Code of Conduct and Prohibited Activities
We are committed to making our Site a safe, respectful and legally compliant environment. We therefore ask that our Users behave responsibly in their use of the Service and at all times comply with the following rules and guidelines pertaining to each User’s use of the Site and Service (“Code of Conduct”):
You agree that you will not, directly or indirectly through others, at any time in connection with your accessing the Site and/or use the Service:
post, upload, display, publish or otherwise make available on the Site any content that you do not have the legal right to possess or post, upload, display or publish;
violate the laws or regulations of any relevant jurisdiction;
infringe on, misappropriate and/ or violate any proprietary rights, privacy rights, rights of publicity or any other legal right belonging to any person;
violate the terms of any agreement between you and a third party;
allow any minor to access the Site and/or use the Service;
introduce any viruses, Trojan horses, worms, or any other harmful code;
interfere with, damage, overload or disrupt, the functionality of our Site, servers or networks;
attempt to disable or bypass our security or access restriction measures, including accessing the Site by expert system, “bot” or other electronic means;
Use any device or process to “spider” or “crawl” or index any ZAZ, LLC Content (as defined below);
modify, correct, adapt, delete, translate, alter, copy, reverse engineer, disassemble, decompile, decode, enhance or otherwise prepare derivative works or improvements of any ZAZ, LLC Content; or
use the Site or the Service for a commercial or non-personal activity without the prior written consent of ZAZ, LLC.
Any use of the Service, the Site and/or ZAZ, LLC Content that is not in strict compliance with the terms and the permitted purposes of this Agreement is prohibited and shall constitute a material breach of this Agreement. We reserve all of its rights and remedies under applicable law, including, without limitation, the right to refuse access to the Site or the Service, terminate any User Account and remove any User Content at any time. Please be aware that any violation of this Code of Conduct may not only result in the immediate suspension or termination of your User privileges but could also expose you to civil and/or criminal liability, as applicable.
10 – No Grant of Proprietary Rights
Nothing in this Agreement shall be deemed to grant any proprietary rights whatsoever to any User in connection with the Site or the use of the Service. All materials and information in any form or medium, including, without limitation, any technology, software, copyrightable materials, documents, data, interface, graphics, designs, invention, content, text, algorithms, source and object code, specifications, products, equipment, methods, files, procedures, or components that are made available to Users through the Site and/or the Service (collectively, the “ZAZ, LLC Content”) are provided to Users by ZAZ, LLC or its licensors solely to support User’s permitted use of the Service. Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and make personal and non-commercial use of the Service, and any software underlying our Service solely to use the Service as provided by ZAZ, LLC.
All other rights in and to the ZAZ, LLC content, Site and Third-Party Materials, including all Intellectual Property Rights therein (as defined below), are and will remain, respectively, with us and the respective rights holders in the Third-Party Materials (as defined below), and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international intellectual property laws.
For purposes of this Agreement:
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Third-Party Materials” means, all content, product, advertisement, information, material, service and/or information in any form or medium, including any open source programs or other software, documents, data, content, specifications, products, equipment or components of, relating to, or posted on or linked to, the Site, that are not proprietary to ZAZ, LLC.
11 – Data Privacy
We take your privacy and the safeguard of all of the non-public personal information you share with us on the Site very seriously (“User Account Private Information”). All your User Account Private Information will be subject to the terms of our Privacy Policy, which describes in detail our practices regarding the information we collect from you when you access the Site and use the Service. Our Privacy Policy, which may be amended or updated from time to time, is available at the following link https://elsabstyling.com/privacy-policy.
You hereby authorize us to hire certain third-party service providers and vendors from time to time to process payments made in connection with the Service, manage and verify your payment account and obtain and store information as part of our and their fraud prevention and detection efforts, to the fullest extent permitted by applicable law. We will never sell nor use your private information in contravention of the terms and conditions set forth in our Privacy Policy.
12 – Advertisements
On the Site or in connection with the Service, ZAZ, LLC may incorporate certain advertising materials and ZAZ, LLC may receive some compensation from such advertisers. You hereby understand and agree that you will not be entitled to receive any share of any earnings or compensation of any kind whatsoever from any person in connection with the presence or integration of any advertisements or commercials, on or with the Site or Service. You further understand and agree that ZAZ, LLC is not endorsing and will not be responsible or liable in any way in connection with the content of such advertisements or commercials, whether the same appear on the Site or are made available via links to third-party websites.
13 – No Endorsement
We do not endorse any User, User Content, product, service, individual or entity, whatsoever. You agree not to claim, suggest or imply any such endorsement by us.
14 – Changes and Cancellation of User Account
You may add, edit, modify or delete any personal information included in your User Account that you have uploaded to the Site at any time. You may also cancel your User Account, delete your User Content from the Site and cease any use of the Service at any time. Once you delete any information, data, communications or photos from your User Account, you will no longer be able to retrieve and/or recover the same from the Site and we are not responsible for saving any back-up thereof. Once you cancel your User Account, you may no longer be able to access, retrieve or recover any of your User Content or any other User data that was stored on the Site and the same may be deleted from our servers.
15 – Termination of User Privileges
We may, may at any time in its sole and absolute discretion, terminate this Agreement, suspend your access to the Site, the Service, either temporarily or permanently, monitor, block or remove any of your User Content (including by disabling access to you to such User Content) and/or cancel your User Account at any time with or without reason and without prior notice or liability to you, including, without limitation, if we suspects any impropriety on your part, if your User Account is not in good standing, if there is a history of payment processing problems or collection issues associated with your User Account.
16 – Modification and Termination of the Site or Service
We may at any time in its sole and absolute discretion, and without notice to you in connection therewith, modify the Service provided to its Users, cease providing the Service, change the design and layout and/or the operation of the Site, whether temporarily or permanently. We will have no liability to you whatsoever in connection with any of the foregoing.
17 – Electronic Communications
You hereby grant us the right to communicate with you regarding the Site or the Service by e-mail using the contact information that you provided to us in your User Account. Your consent to receive electronic communications encompasses any e-mails, which we may send to you periodically regarding promotional offers or legal notices or other information about your account.
18 – Indemnification
You agree to indemnify and hold harmless ZAZ, LLC and its equity holders, managers, officers, employees, affiliates, representatives and agents (collectively, the “ZAZ, LLC Parties”) from and against all losses, damages, claims, obligations, liabilities, costs and expenses (including attorney’s fees), collectively, “Claims”) arising out of, resulting from or relating to: (I) your use of the Service; (II) any infringement or violation of the Intellectual Property Rights, rights of privacy, rights of publicity, or other legal rights of any person in connection with your use of the Service; (III) any third-party Claims for indemnification in connection with your use of the Service; and (IV) your breach of any material provision of this Agreement.
19 – Survival of Terms
All provisions of this Agreement that are reasonably intended to survive the termination of this Agreement shall so survive, including, without limitation, the sections entitled: “Indemnification,” “Disclaimer of Warranties,” “External Links Disclaimer,” “Limits of Liability,” “Severability,” “No Waiver,” “Arbitration and Class Action Waiver,” “Dispute Resolution for Non-US Residents Only if a Tribunal has Ruled that Arbitration is Prohibited by Law,” “Governing Law and Venue,” “California Residents,” “Equitable Remedies” and “Printed Terms of Service Admissible.”
20 – Disclaimer of Warranties
The information contained on the Site is for general information purposes only. Your access to the Site and use of the Service are solely at your own risk. You understand that all information uploaded, posted, published or otherwise made available through the Service is at all times the sole responsibility of the person from which such content originated, that ZAZ, LLC cannot guarantee the authenticity or accuracy of any data or the identity of any User, and that therefore ZAZ, LLC assumes no responsibility for errors or omissions in the contents, data or information on the Site and in connection with the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY ANYWHERE IN THIS AGREEMENT, THE SITE, THE SERVICE AND THE ZAZ, LLC CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ZAZ, LLC HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND ZAZ, LLC SPECIFICALLY DISCLAIMS, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ZAZ, LLC MAKES NO WARRANTY OF ANY KIND THAT THE SITE, THE SERVICE AND/OR THE ZAZ, LLC CONTENT WILL MEET USER OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE IMMUNE FROM UNAUTHORIZED ACCESS, BE COMPATIBLE OR WORK WITH ANY DEVICE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, ERRORS OR INACCURACIES. ZAZ, LLC DOES NOT WARRANT THAT THE STYLING SERVICES AND/OR THE PRODUCTS RECOMMENDED BY ELSA B. WILL MEET USERS’ EXPECTATIONS. ZAZ, LLC DOES NOT ENDORSE ANY PERSON (OTHER THAN ELSA B.), SERVICE OR PRODUCT. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. ZAZ, LLC MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, SERVICE OR OTHER CONTENT IN THE SITE OR ANY WEBSITE WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ZAZ, LLC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, SERVICE OR OTHER CONTENT OF THE SITE OR ANY OTHER WEBSITE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
ZAZ, LLC reserves the right to make additions, deletions, or modification to the contents, features or other aspects of the Service, at any time without prior notice to you.
21 – External Links Disclaimer
The Site may contain links to external websites, including but not limited to social network websites, that are not provided or maintained by, in any way affiliated with or controlled by, ZAZ, LLC, and ZAZ, LLC does not endorse and is not liable for any Third-Party Materials, including, without limitation, any infringing, defamatory, obscene, discriminatory or otherwise offensive or illegal Third-Party Materials. Further, ZAZ, LLC does not guarantee the accuracy, relevance, timeliness, or completeness of any Third-Party Materials available from these external websites. You are advised to carefully read all legal documents available on such external websites, including their terms and conditions and all other relevant documents and policies explaining the rules governing the use of such sites and the content posted thereon. By using the Service, you expressly relieve and hold harmless ZAZ, LLC from any and all liability arising from your use of any third-party website.
If you purchase a product a service from a third party found on or through the Service, you understand that your rights and obligations regarding the purchase of such product or service will be subject to such third party’s applicable agreements, terms and conditions and/or policies, which you are solely responsible for investigating and reviewing prior to entering into a sale transaction with any such third party. You acknowledge and agree that ZAZ, LLC is not affiliated with or an agent of such third party, and that therefore will have no obligation or liability to you whatsoever for any loss or damage incurred in connection with a dispute arising from any such third-party transaction.
22 – Limits of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE ZAZ, LLC PARTIES BE LIABLE FOR ANY LOSSES, INJURIES, CLAIMS, DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICE, THIS AGREEMENT, THE ZAZ, LLC CONTENT OR ANY THIRD-PARTY MATERIALS, INCLUDING, WITHOUT LIMITATION, ANY USE OF OR INABILITY TO ACCESS THE SITE OR USE THE SERVICE, THE CANCELLATION OF A USER ACCOUNT, THE REMOVAL OF USER CONTENT, OR THE PERFORMANCE, NON-PERFORMANCE OR CONDUCT OF ELSA B.
IN THE EVENT THAT LIABILITY MAY NOT BE CURTAILED TO THE FULLEST EXTENT OF THE FOREGOING SENTENCE IN SOME JURISDICTION, THEN IN SUCH INSTANCE, THE MAXIMUM TOTAL AMOUNT OF LIABILITY FOR DAMAGES SHALL BE LIMITED TO TWENTY UNITED STATES DOLLARS ($20.00).
You acknowledge and agree that the disclaimers and limitations in this Agreement are reasonable under the circumstances and constitute an essential part of this Agreement, without which ZAZ, LLC would not be able to offer the Service to you.
23 – No Agency
These Terms of Service do not and shall not be construed to create any agency, partnership, joint venture, franchise or employer-employee relationship between you and ZAZ, LLC.
ZAZ, LLC is an independent service provider and not a party to any payment transactions effected through any third-party payment processor available on the Site. Any dispute that may arise between you and a payment processor in connection with any services provided to you by such provider is not ZAZ, LLC’s responsibility and is to be settled directly between you and such provider.
24 – Severability
If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of this Agreement to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction: (a) this Agreement will not be affected in other jurisdictions to the extent that such determination or finding has no application; and (b) in the relevant jurisdiction, the remainder of this Agreement (to the fullest extent permitted by law) will continue in full force and effect. Neither you nor us will be in breach of these Terms in the event that party is unable to perform its obligations as a result of any reason or condition beyond its reasonable control.
25 – No Waiver
No delay or indulgence by either you or us in enforcing any of the terms of this Agreement or the granting of time by either party to the other shall prejudice or restrict such rights and powers. No waiver of any term or condition of this Agreement shall be effective unless made in writing and signed by us. The waiver of any breach of any term or condition set forth in this Agreement shall not be construed as a waiver of any subsequent breach or condition thereof.
26 – Dispute Resolution
Most disagreements or disputes can be resolved amicably through informal mediation. You can reach us at https://elsabstyling.com/contact/. 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 us and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
27 – ARBITRATION AND CLASS ACTION WAIVER – PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
If the parties are unable to reach an amicable resolution within a period of thirty (30) days from the time the informal mediation process is initiated then you and we expressly agree that any legal dispute, claim or controversy between you and us arising out of or relating to this Agreement, the Service, including without limitation disputes related to rights of privacy and/or publicity, and whether or not such dispute, claim or controversy involves a third party (each, a “Dispute”), and that the enforcement of this Arbitration and Class Action Waiver section, shall be settled exclusively by binding, individual arbitration in accordance with the American Arbitration Association (“AAA”) then current rules for arbitration of consumer-related disputes (available online at http://www.adr.org).
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY DISPUTE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH DISPUTE AROSE OR BE FOREVER BARRED.
The arbitration proceedings will be held by a single arbitrator, will be confidential and in English, and this Agreement will be interpreted and construed in the English language, which is the language of the official text of this Agreement.
The arbitration proceedings will be held in New York, New York, provided however that if the value of the relief sought is U.S.$10,000 or less, either you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and us (subject to the arbitrator’s discretion to require an in-person hearing based on the circumstances). Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. Any in-person arbitration shall be held at a mutually agreeable location determined by you and us in accordance with the AAA rules.
The decision of the arbitrator shall be non appealable and final and binding upon the parties hereto, and judgment upon the award rendered by the arbitrator may be entered into any court having jurisdiction. The Federal Arbitration Act (9 U.S.C. §1 et seq.), and not any state law concerning arbitration, governs all arbitration under this arbitration clause. The arbitrator will be empowered to grant whatever relief would be available in a court at law or in equity but will not have authority to award damages, remedies or awards that conflict with this Agreement.
The arbitrator shall award the costs and expenses of arbitration, including attorneys’ fees, to the prevailing party as part of such party’s award, in addition to all other relief granted. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost.
YOU HEREBY UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU AND WE HEREBY EXPRESSLY WAIVE OUR RIGHTS TO A TRIAL IN A COURT OF LAW.
Exception for Litigation or Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve Disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its Intellectual Property Rights. As an alternative to binding arbitration, you may bring your Dispute in “small claims” court, if permitted by that small claims court’s rules and if within such small claims court’s jurisdiction, provided that the small claims court does not permit class, representative, or consolidated actions, or the award of relief in favor of any person or entity that is not a named party to the small claims action.
Any proceeding to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You and we also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if we are a party to the proceeding. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. THIS WAIVER IS MUTUAL AS BETWEEN YOU AND US.
If any part of this section, other than the class action waiver clause, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. Notwithstanding anything to the contrary contained herein, if the class action waiver clause contained herein is not enforceable as to any person or persons, such non-enforceability shall apply to such person or persons only, and all other persons shall continue to be governed by the arbitration clause.
30-DAY RIGHT TO OPT OUT: You have the right to opt out and not be bound by the Arbitration and Class Action Waiver provisions set forth above by sending (from the email address you used to create your User Account) written notice of your decision to opt out to https://elsabstyling.com/contact/ with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your agreement to these Terms of Service; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of this section. If you opt out of these arbitration provisions, we will not be bound by them either.
28 – Dispute Resolution for Non-US Residents Only if a Tribunal has Ruled that Arbitration is Prohibited by Law
If you are a non-US resident and a tribunal in your country of residence has ruled that arbitration is prohibited by law, then you agree to the following:
(a) If any Dispute arises you and we will send a written notice of the Dispute to the other, together with a proposed resolution of it. We will send such notice to you using the e-mail in your User Account. You will send us such notice to https://elsabstyling.com/contact/
We will then attempt to amicably resolve the Dispute in good faith for a period of ninety (90) days following the date of the notice.
(b) If after such time we are unable to find a mutually agreeable resolution of the Dispute, then the state or federal courts in the State of New York shall have non-exclusive jurisdiction of any Dispute under this section.
(c) To the maximum extent permitted by the mandatory laws in your country of residence, these Terms of Service and any Dispute arising out of or in connection with it, will be governed by, and construed in accordance with, the laws of the U.S. and the State of New York without regard to its conflicts of law provisions, without regard to its conflicts of law provisions.
(d) The foregoing provisions of this Section will not apply to any legal action seeking an injunction or other equitable relief.
(e) You and we further agree that: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST FILE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN THIS SECTION) WITHIN ONE (1) YEAR AFTER DISCOVERY OF SUCH DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
29 – Governing Law and Venue
This Agreement, including the validity and interpretation thereof, and the rights and obligations of the parties hereto, shall be governed by and construed in accordance with the internal laws of the State of New York, United States of America, excluding its conflict of law provisions or rules; except for the arbitration provisions, which shall be governed by United States federal law.
In the event that the provisions regarding mandatory arbitration proceedings set forth herein are determined not to apply to you or to a particular Dispute, you agree that any such Dispute shall then be submitted to the exclusive jurisdiction of a state or federal court located in New York County, State of New York, United States of America, and you agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such Disputes. YOU IRREVOCABLY CONSENT TO THE EXERCISE OF PERSONAL JURISDICTION BY SUCH COURTS IN ANY SUCH ACTION. IN ADDITION, AND NOTWITHSTANDING THE FOREGOING, YOU IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT YOU MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON YOU AND MAY BE ENFORCED IN ANY COURT IN WHICH YOU ARE SUBJECT TO JURISDICTION BY A SUIT UPON SUCH JUDGMENT.
30 – California Residents
(a) If you are a California resident, to the extent permitted by California law, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor” as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.
(b) Under California Civil Code Section 1789.3, California users of online services are entitled to the following specific consumer rights notice: If a User has a question or complaint regarding the Service, please send an email to https://elsabstyling.com/contact/. Users may also contact us by writing to ZAZ, LLC [Address]. Users may also reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210
31 – Equitable Remedies
You acknowledge and agree that (I) a breach or threatened breach by you of your obligations under this Agreement would give rise to irreparable harm to ZAZ, LLC for which monetary damages would not be an adequate remedy, and (II) in the event of a breach or a threatened breach by you of any such obligations, ZAZ, LLC will, in addition to any and all other rights and remedies that may be available to ZAZ, LLC at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including, but not limited to, a temporary restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security or to prove actual damages or that monetary damages will not afford an adequate remedy.
32 – Viewing, Accessing and Use Outside the United States
ZAZ, LLC makes no claims that the Site may be lawfully viewed, accessed or used outside the United States. Access or use of the Site may not be legal by certain persons or in certain countries. If you access or use the Site from outside of the United States, (a) you do so at your own risk, (b) you are responsible for compliance with the laws of your country of residence, and (c) you may be subjecting yourself to United States law, which may differ from your local laws, including laws that govern personal data collection, use, and disclosure. In your use of this Site or Service, you may transfer certain personal information to the United States. You consent to that transfer and you consent to the application of the relevant laws of the United States of America.
33 – Assignment
You may not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise. Any purported assignment, delegation or transfer in violation of this provision is void. This Agreement may be freely transferred, assigned, or delegated by ZAZ, LLC.
34 – Printed Terms of Service Admissible
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
35 – Entire Agreement
This Agreement sets forth the entire agreement between you and us with respect to the Service, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Service.
36 – Force Majeure
We will not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
37 – Headings
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.