DRK BEAUTY, INC.
Last Modified: [5/18/20]
Please read this Agreement carefully to ensure that you understand each provision. This agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
- Use of Our Site
This is a contract between you and DRK Beauty. You must read and agree to these terms before using the Site. If you do not agree, you may not use the Site. You may use the Site only if you can form a binding contract with DRK Beauty, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Site by anyone under 13 is strictly prohibited and in violation of this Agreement. The Site is not available to any Users previously removed from the Site by DRK Beauty.
- Access to the Site
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Site for your personal, noncommercial use only and as permitted by the features of the Site. DRK Beauty reserves all rights not expressly granted herein in the Site and the DRK Beauty Content (as defined below). DRK Beauty may terminate this license at any time for any reason or no reason.
- Site Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Site in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Site in a manner that sends more request messages to the DRK Beauty servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that DRK Beauty grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from thisisdrkbeauty.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Site; (vii) collecting or harvesting any personally identifiable information, including account names, from the Site; (viii) using the Site for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Site; (xi) accessing any content on the Site through any technology or means other than those provided or authorized by the Site; or (xii) bypassing the measures we may use to prevent or restrict access to the Site, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein.
We may, without prior notice, change the Site; stop providing the Site or features of the Site, to you or to Users generally; or create usage limits for the Site. We may permanently or temporarily terminate or suspend your access to the Site without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other DRK Beauty Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. DRK Beauty shall have no liability for your interactions with other Users, or for any User’s action or inaction.
- Site Rules for Healthcare Providers
If you are a therapist or other healthcare specialist, professional, provider, organization, or agent or affiliate thereof (“Healthcare Provider”) or other person or entity in the healthcare or medical industries, regardless of whether you post User Content (as defined below) on the Site or whether you schedule or intend to schedule appointments with Users who were introduced to you via the Site, you acknowledge and agree that:
(i) You will not use the Site to view, access or otherwise use, directly or indirectly, price, availability, or other User Content for any purpose other than your own personal use as a patient or prospective patient.
(ii) You will not use the Site to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of the prices charged for any product or service; the kinds, frequencies or amounts of any product or service offered; or the customer or customer categories for any product or service, or otherwise engage or attempt to engage in price fixing, output restriction, or customer or market allocation.
(iii) You will not use the Site, directly or indirectly, to engage in any anti-competitive, deceptive or unfair practices, or otherwise violate applicable antitrust, competition or consumer protection laws, or regulations.
(iv) If you have volunteered to participate in the DRK Beauty Healing initiative, you will offer the number of free sessions that you have reported to DRK Beauty that you will offer to those Users who were introduced to you via the Site.
- No Professional Advice
If the Site provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Site. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
The DRK Beauty Content that you obtain or receive from DRK Beauty, its employees, contractors, partners, sponsors, advertisers, licensors or otherwise through the Site, is for informational purposes only. All medically related information comes from independent healthcare professionals and organizations and is for informational purposes only.
WHILE WE HOPE THE DRK BEAUTY CONTENT AND USER CONTENT IS USEFUL IN YOUR HEALTHCARE JOURNEY, IT IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER, UNDER ANY CIRCUMSTANCE. DO NOT USE THE SITE FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTHCARE PROFESSIONAL AND 911. YOUR USE OF THE CONTENT IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF THERAPY OR OTHER PROFESSIONAL HEALTHCARE ADVICE, OR THE PROVISION OF MEDICAL CARE.
We do not recommend or endorse any specific Healthcare Providers, procedures, opinions, or other information that may appear through the Site. If you rely on any DRK Beauty Content or User Content, you do so solely at your own risk. We encourage you to independently confirm any DRK Beauty Content or User Content relevant to you with other sources, including the Healthcare Provider’s office, medical associations relevant to the applicable specialty, your state medical boards, and the appropriate licensing or certification authorities to verify listed credentials and education.
- No Doctor Patient Relationship
THERAPISTS AND OTHER MEDICAL PROFESSIONALS USE THE SITE TO SHARE CONTENT WITH YOU, BUT YOUR USE OF THIS CONTENT IS NOT A SUBSTITUTE FOR HEALTHCARE. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED WHEN YOU USE THE SITE, DRK BEAUTY CONTENT, OR USER CONTENT. THIS IS TRUE WHETHER SUCH DRK BEAUTY CONTENT OR USER CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SITE OR THROUGH ANY OTHER COMMUNICATIONS FROM DRK BEAUTY INCLUDING, WITHOUT LIMITATION, LINKS TO OTHER SITES, OR ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU FIND AN APPROPRIATE HEALTHCARE PROVIDER IN ANY FIELD.
DRK Beauty encourages Healthcare Providers to use the Site responsibly, but we have no control over, and cannot guarantee the availability of, any Healthcare Provider at any particular time. We will not be liable for cancelled or otherwise unfulfilled appointments, or any injury or loss resulting therefrom, or for any other injury or loss resulting or arising from, or related to, the use of the Site whatsoever.
- Authorization and Acknowledgement; Important Information About Healthcare Provider Relationships and Healthcare Provider Lists
In connection with using the Site to locate and schedule appointments with Healthcare Providers, you understand that:
YOU ARE RESPONSIBLE FOR CHOOSING YOUR OWN HEALTHCARE PROVIDER, INCLUDING WITHOUT LIMITATION, DETERMINING WHETHER THE APPLICABLE HEALTHCARE PROVIDER IS SUITABLE FOR YOUR HEALTHCARE NEEDS BASED ON SPECIALTY, EXPERIENCE, QUALIFICATION, LICENSES AND OTHER IMPORTANT FACTS AND CIRCUMSTANCES THAT COULD IMPACT YOUR CARE.
DRK Beauty or its designee take certain limited steps to verify that Healthcare Providers participating in the Site hold certain active licenses, certifications or registrations required by law to practice the specialties of the services offered by them through the Site. DRK Beauty may also exclude Healthcare Providers from our Site who, in DRK Beauty’s discretion, have engaged in inappropriate or unprofessional conduct.
To help you find Healthcare Providers who may be suitable for your needs, and enable the maximum choice and diversity of Healthcare Providers participating in the Site, we will provide you with lists and/or profiles of Healthcare Providers. DRK Beauty (a) does not recommend or endorse any Healthcare Providers, (b) does not make any representations or warranties with respect to these Healthcare Providers or the quality of the healthcare services they may provide, and (c) does not receive any additional fees from Healthcare Providers for featuring them (i.e., higher or better placement on lists) through the Site.
- User Content
Some areas of the Site allow Users to post or provide content such as name, professional qualifications, expertise, e-mail address, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Site is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by providing or sharing User Content through the Site, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. DRK Beauty has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Site.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. DRK Beauty reserves the right, but is not obligated, to reject and/or remove any User Content that DRK Beauty believes, in its sole discretion, violates any of these provisions. You understand that publishing your User Content on the Site is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Site and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and DRK Beauty’s use thereof as contemplated by this Agreement and the Site will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- DRK Beauty may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
DRK Beauty takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Site. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Site, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that DRK Beauty shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
You acknowledge that although some User Content may be provided by healthcare professionals, the provision of such User Content does not create a medical professional/patient relationship, and does not constitute an opinion, medical advice, or diagnosis or treatment, but is provided to assist you in choosing a Healthcare Provider.
- User Content License Grant
By posting or otherwise making available any User Content on or through the Site, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to DRK Beauty a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Site and DRK Beauty’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Site a non-exclusive license to access your User Content through the Site, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Site and under this Agreement.
- DRK Beauty Content; Our Proprietary Rights
Except for your User Content, the Site and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “DRK Beauty Content”), and all Intellectual Property Rights related thereto, are the exclusive property of DRK Beauty and its licensors (including other Users who post User Content to the Site). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any DRK Beauty Content. Use of the DRK Beauty Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
The Site is an informational and educational resource for users and Healthcare Providers. We may, but have no obligation to, publish DRK Beauty Content through the Site that is reviewed by our editorial personnel. No party (including DRK Beauty) involved in the preparation or publication of such works guarantee that the DRK Beauty Content is timely, accurate or complete, and they will not be responsible or liable for any errors or omissions in, or for the results obtained from the use of, such DRK Beauty Content.
WHILE WE MAKE REASONABLE EFFORTS TO PROVIDE YOU WITH ACCURATE DRK BEAUTY CONTENT, WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, PRICE OR COST INFORMATION, INSURANCE COVERAGE OR BENEFIT INFORMATION, OR ANY OTHER CONTENT AVAILABLE THROUGH OR RELATED TO THE SITE. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH DRK BEAUTY CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL OR ENTITY LISTED OR ACCESSIBLE THROUGH THE SITE.
You may choose to or we may invite you to submit comments or ideas about the Site, including without limitation about how to improve the Site or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place DRK Beauty under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, DRK Beauty does not waive any rights to use similar or related ideas previously known to DRK Beauty, or developed by its employees, or obtained from sources other than you.
DRK Beauty cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- DMCA Notice
Since we respect artist and content owner rights, it is DRK Beauty’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Site, please notify DRK Beauty’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Site;
4. Information reasonably sufficient to permit DRK Beauty to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
DRK Beauty, Inc.
Address: 511 W 25th Street, 3rd Floor, NY, NY, 10001
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying DRK Beauty and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with DRK Beauty’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, DRK Beauty has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. DRK Beauty may also at its sole discretion limit access to the Site and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- Third-Party Links and Information
You agree to defend, indemnify and hold harmless DRK Beauty and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Site, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Site with your unique username, password or other appropriate security code.
- No Warranty
The Site is provided on an “as is” and “as available” basis. Use of the Site is at your own risk. To the maximum extent permitted by applicable law, the Site is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from DRK Beauty or through the Site will create any warranty not expressly stated herein. Without limiting the foregoing, DRK Beauty, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Site will meet your requirements; that the Site will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Site is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Site is downloaded at your own risk and you will be solely responsible for any damage to your computer system or loss of data that results from such download or your use of the Site.
DRK Beauty does not warrant, endorse, guarantee, or assume responsibility for any product or site advertised or offered by a third party through the Site or any hyperlinked website or site, and DRK Beauty will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by applicable law.
- Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall DRK Beauty, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this Site. Under no circumstances will DRK Beauty be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Site or your account or the information contained therein.
To the maximum extent permitted by applicable law, DRK Beauty assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our site; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Site; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our site by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Site; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall DRK Beauty, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to DRK Beauty hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if DRK Beauty has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
DRK Beauty makes no representations that the Site is appropriate or available for use in locations other than within the United States. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Site if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND DRK BEAUTY TO ARBITRATE THEIR DISPUTES AND LIMITS THE AVAILABILITY OF A JURY TRIAL.
- Arbitration. Both you and DRK Beauty agree to resolve by binding arbitration any claim, dispute, or controversy (whether based in contract, tort, statute, or any other legal theory) arising out of or in connection with or relating to (1) the Site, your use of the Site, or the information that you provide DRK Beauty in connection with your use of the Site, or (2) this Agreement, including without limitation, the validity, interpretation, enforcement, or application of this Agreement and/or this Governing Law, Arbitration, and Class Action/ Jury Trial Waiver section (collectively, “Claims”). Both you and DRK Beauty further agree that the arbitrator will also have the exclusive authority to determine all additional threshold arbitrability issues, including without limitation issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
- Class Action Waiver. YOU AND DRK BEAUTY AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT IN ANY REPRESENTATIVE CAPACITY, INCLUDING A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR ANY OTHER REPRESENTATIVE PROCEEDING WHATSOEVER. Further, unless both you and DRK Beauty agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. Any determination about the validity, interpretation, enforcement, and/or application of this Class Action Waiver paragraph is delegated to the arbitrator.
- Jury Trial Waiver. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND DRK BEAUTY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW.
- Arbitration Procedure. A party who intends to seek arbitration must first send a written notice of the Claim to the other party by certified mail or Federal Express, or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Our address for notice is email@example.com. You and DRK Beauty agree to use good faith efforts to resolve the Claim, but if the parties do not resolve the Claim within 30 days of the Notice, then either party may commence arbitration. Any arbitration between you and DRK Beauty will be governed by the American Arbitration Association (“AAA”) Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting DRK Beauty. Unless you and DRK Beauty otherwise agree, the arbitration will be conducted in the county where you reside. If your claim is for less than $10,000, DRK Beauty will reimburse your filing fee, unless the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose, in which case the payment of all fees will be determined in accordance with the AAA Rules. If your claim is for greater than $10,000, the payment of all fees will be determined in accordance with the AAA Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Exceptions. Notwithstanding anything else in this Agreement to the contrary, you and DRK Beauty both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, provided that is the sole form of relief sought, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Governing Law and Forum Selection. The parties agree that this Agreement evidences a transaction involving interstate commerce, and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) and AAA Rules will govern interpretation and enforcement of this Governing Law, Arbitration, and Class Action/Jury Trial Waiver section where applicable. All other claims, disputes, or controversies will be resolved under the laws of the State of New York, without respect to its conflict of laws principles. For any claims, disputes or controversies that are not subject to mandatory arbitration under this section, you and DRK Beauty agree that (i) a federal or state court located in New York County, New York will be the sole and exclusive forum for resolution of the claim, dispute or controversy, and you and DRK Beauty irrevocably submit to the jurisdiction of the federal and state courts located in New York County, New York, and (ii) litigation of any claim, dispute, or controversy proceeding in court will be stayed pending the outcome of any related individual Claim in arbitration.
- Severability and Survival. If any clause or provision set forth in this Governing Law, Arbitration, and Class Action/Jury Trial Waiver section is determined to be illegal, invalid or unenforceable under present or future law, then the clause or provision so determined to be illegal, invalid or unenforceable will be severable without affecting the enforceability of all remaining clauses or provisions. This Governing Law, Arbitration, and Class Action/Jury Trial Waiver section will survive any termination or expiration of this Agreement.
- Changes and Opt-out. You may opt out of the applicability of this Governing Law, Arbitration, and Class Action/Jury Trial Waiver section by providing DRK Beauty a written opt-out notice within 30 days of the “Effective Date” above. This written notice must be provided by mail to 511 W 25th Street, New York, NY 10001. In order to be effective, this notice must include your full name and clearly indicate your intent to reject the changes to this Agreement.
- Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by DRK Beauty without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with DRK Beauty in connection with the Site, shall constitute the entire agreement between you and DRK Beauty concerning the Site. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
- No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and DRK Beauty’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.