SECTION 14 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 14 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using https://ephemeral.tattoo/, or any other website with an authorized link to this Agreement (“Website”), making a deposit, reserving an appointment or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively with the Website, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.
Subject to Section 14.9 of this Agreement, Ephemeral reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. EPHEMERAL TATTOO SERVICES AND RESERVATION DEPOSIT AGREEMENT
1.1 Agreement to Purchase. Upon payment of your Receipt (as defined below), you agree to purchase a Tattoo (as defined below) from us pursuant to the terms and conditions of this agreement.
1.2 Invitation Process; Deposit; Purchase Price; Taxes; Final Payment; Cancellation; Changes. After you pay the appropriate deposit amount listed on the Website (your “Deposit”), complete the required design survey provided by Ephemeral and an Ephemeral tattoo appointment is available to you (“Appointment”), you will receive a Book Your Appointment email (the “Invitation”). The Invitation will allow you to select the exact date and time of your Appointment. The purchase price of your Ephemeral tattoo (the “Tattoo”) will be agreed upon at your Appointment. Upon completion of your Appointment, you will receive a summary of the final purchase price of your Tattoo (the “Receipt”), at which time, you will immediately pay the total amount due listed in the Receipt, less your Deposit. Such Receipt may also include relevant taxes, including without limitation any sales, use and similar taxes, which is immediately due upon completion of your Appointment. Any price included in the Receipt is only being offered to you as an estimate, may not include taxes and is subject to change. Taxes may be up to 10% or more of the purchase price and depends on factors, such as where your Appointment takes place. Until you schedule your Appointment, you may cancel reservation at any time, in which case you will receive a full refund of your Deposit. Deposits will not be refundable once your Appointment is scheduled.
1.3 Cancellation. Ephemeral may cancel your Appointment and refund your Deposit at any time.
1.4 Appointment Booking. Appointment availability is dependent on many factors, including when and where we open our studios. You understand that we may not have made Appointments available near you at the time you entered into this Agreement so we do not guarantee when you will be able to complete your Appointment.
1.5 Payment. To make a reservation through the Services, you must provide valid payment information, such as a credit card (Visa, MasterCard or any other issuer accepted by us) of a payment provider (“Payment Provider”). You agree to immediately notify Ephemeral of any change in your billing address or credit card used for payment hereunder. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Ephemeral with your credit card number and associated payment information, you agree that Ephemeral is authorized to immediately invoice your account for all fees and charges due and payable to Ephemeral hereunder and that no additional notice or consent is required.
2. INTELLECTUAL PROPERTY ASSIGNMENTS AND LICENSES
2.1 Ownership of Intellectual Property. In exchange for the services being performed by Ephemeral, I hereby grant to Ephemeral all rights, title and interest that I may have in any works of authorship and art (including without limitation any artwork designed in consideration of and for my tattoo and any stencils created therefrom), including all intellectual property rights therein, that is created, developed or produced, either jointly or solely by me, in connection with Ephemeral’s performance of tattoo services (“Art”). The foregoing shall not include any pre-existing artwork that I provide to Ephemeral (“Pre-existing Art”). I hereby waive any “artist’s rights” or “moral rights” I may have in connection with the Art.
2.2 License to Pre-Existing Art. If I am the owner of Pre-Existing Art, I hereby grant Ephemeral a non-exclusive, worldwide, irrevocable, transferable, sublicensable, perpetual license to reproduce, create derivative works, distribute, publicly display, create derivative works of, and otherwise use and exploit any Pre-Existing Art to the extent it is incorporated into the Art in any medium or format, whether now known or later developed, including for commercial purposes.
If a third-party owns the Pre-Existing Art, I hereby grant Ephemeral a non-exclusive license to reproduce, create derivative works, distribute, publicly display, create derivative works of, and otherwise use any Pre-Existing Art in connection with performing tattooing services to me and displaying such work on Ephemeral’s website and social media platforms.
2.3 Representations Regarding Rights to Use Intellectual Property; Indemnification. I represent and warrant that I have the right and unrestricted ability to grant all the rights and licenses granted herein to Ephemeral and that the Art and Pre-Existing Art, and use thereof by Ephemeral, will not defame or infringe upon or violate any copyright, patent, trademark, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law. I represent and warrant that no payments or royalties to, or consents from, any third party are required in connection with Ephemeral’s use of any of the rights granted herein. I agree to indemnify Ephemeral from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to a breach or alleged breach of the representations and warranties made by me in this paragraph.
2.4 Restrictions. I agree that I will not commercialize any of the Art without Ephemeral’s prior written consent. This shall not restrict your ability to appear and be captured in any commercial film, publication, or other production or public, live event; so long as the Art is not featured or used in a manner that is separate from your likeness.
You agree that your submission of any ideas, suggestions, documents, and/or proposals to Ephemeral (“Feedback”) is at your own risk and that Ephemeral has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Ephemeral the right to use any Feedback in any way at any time without any additional approval or compensation.
4. COMPANY COMMUNICATIONS
By entering into this Agreement, you agree to receive communications from Ephemeral and our affiliates and representatives, which may include, without limitation, emails, push notifications, and SMS, MMS and other text messages (“Communications”). Text messages and emails may be directed to any telephone number and email address that you supply to us in connection with your creation of an Account or use of the Services or that you otherwise agree we may use to communicate with you. Communications may include but are not limited to: informational, transactional, operational and customer service communications concerning your Account, service orders, payments, appointments or use of the Website. IF YOU OPT-IN TO RECEIVE PROMOTIONAL COMMUNICATIONS, YOU MAY ALSO RECEIVE OFFERS, PROMOTIONS AND OTHER MARKETING-RELATED COMMUNICATIONS. YOU AGREE THAT TEXT MESSAGES MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY. Message frequency will vary. You also agree that carrier Message and Data Rates may apply to any text messages you receive in accordance with your carrier rate plan. YOUR CONSENT TO RECEIVE AUTODIALED PROMOTIONAL TEXT MESSAGES IS NOT REQUIRED AS A CONDITION OF ANY PURCHASE. To opt out of promotional emails, follow the unsubscribe options in the promotional email itself. To opt out of text messages, you can reply with the word “STOP” to any text message you receive from us. However, you acknowledge that opting out of receiving text messages may impact your use of the Services.
5. OWNERSHIP OF AND LICENSE TO USE SERVICES.
5.1. Ownership. Ephemeral and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Ephemeral grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Ephemeral, its suppliers and service providers reserve all rights not granted in this Agreement.
5.2 Trademarks. Ephemeral related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of Ephemeral and may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
6. RESTRICTIONS ON USE OF SERVICES.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, logo or Services (including images, text, page layout or form) of Ephemeral; (c) you shall not use any metatags or other “hidden text” using Ephemeral's name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by Ephemeral pursuant to this Agreement.
7. THIRD-PARTY SERVICES.
The Services may contain links to third-party services such as third-party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Ephemeral does not control and is not responsible for Third-Party Links. Ephemeral provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk. When you leave the Services, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Links, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree to indemnify and hold Ephemeral, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Ephemeral Indemnitees”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any claims concerning: (a) your misuse of the Services; (b) your violation of this Agreement or breach of any representation or warranty; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Ephemeral reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Ephemeral in asserting any available defenses. This provision does not require you to indemnify any of the Ephemeral Indemnitees for any unconscionable commercial practice by such party or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
9. DISCLAIMER OF WARRANTIES AND CONDITIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OR SERVICES OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE EPHEMERAL INDEMNITEES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM THE PRODUCTS AND SERVICES.
THE INCLUSION OF ANY TATOO DESIGNS ON THE SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THESE DESIGNS WILL BE AVAILABLE AT ANY TIME. EPHEMERAL RESERVES THE RIGHT TO REFUSE APPLICATION OF A PROPOSED TATTOO DESIGN IN ITS SOLE DISCRETION FOR ANY REASON, INCLUDING WITHOUT LIMITATION, DESIGNS THAT ARE DEFAMATORY, LIBELOUS, OR OTHERWISE OFFENSIVE OR INFRINGING ON THIRD PARTY RIGHTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10. LIMITATION OF LIABILITY.
10.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE EPHEMERAL INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT EPHEMERAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Disclaimer of Third Party Conduct. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE EPHEMERAL INDEMNITEES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
10.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE EPHEMERAL INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO EPHEMERAL BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).
10.4 User Content and Settings. THE EPHEMERAL INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
10.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EPHEMERAL AND YOU.
10.6 Exclusions. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
11. PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
Ephemeral respects the intellectual property of others. If you believe that your intellectual property rights are being infringed on the Services, please make your claim using the procedures described in this Section 11. We respond quickly to the concerns of rights owners about any alleged infringement, and we terminate repeat infringers in appropriate circumstances.
For claims of copyright infringement: If you believe in good faith that content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of the location on the Services of the material that you claim is infringing;
- your address, telephone number and e-mail address;
- a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Address any correspondence regarding notice of claims of copyright infringement to our Copyright Agent: Ephemeral Solutions, Inc., ATTN:: Copyright Agent, email@example.com or email at firstname.lastname@example.org.
For all other claims of intellectual property infringement, including claims relating to trademarks, patents, rights of publicity, and counterfeits, please contact us at Ephemeral Solutions, Inc., 4 Oxford Rd. Ste B1, Milford CT 06460, ATTN: IP Infringement Claims or via email to email@example.com. This address is intended for legal notices only. Please direct any general inquiries or complaints to firstname.lastname@example.org.Ephemeral may request additional information before processing a notice claiming IP infringement under this Section 11, such as identity verification of the reporting party or documentation regarding the claimed right. Ephemeral does not mediate IP disputes, but strives to review and respond to such claims promptly. Ephemeral reserves the right to remove any content that is found to infringe the rights of others.
12.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
12.2 Termination. At its sole discretion, Ephemeral may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Ephemeral reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Ephemeral for services purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 2, 3, 5, 6, 8, 9, 10, 12.2, 14, and 15.
13. INTERNATIONAL USERS.
The Services are controlled and offered by Ephemeral from its facilities in the United States of America. Ephemeral makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
14. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section 14 (“Arbitration Agreement”) carefully. Subject to your right to opt-out, as further described in this Arbitration Agreement, it requires you to arbitrate disputes with Ephemeral, includes a broad waiver of your right to participate in class actions and your constitutional right to a jury trial, and otherwise limits the manner in which you can seek relief from us.
14.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website and Services, to any products sold or distributed through the Website, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
14.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to us at Ephemeral Solutions, Inc., ATTN: Legal Dept, 4 Oxford Rd. Ste B1, Milford CT 06460. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Ephemeral. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
14.4 Waiver of Jury Trial. YOU AND EPHEMERAL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
14.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address provided to us by you through the Services (if any), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.7 Severability. Except as provided in Section 14.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
14.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Ephemeral.
14.9 Modification. Notwithstanding any provision in this Agreement to the contrary, Ephemeral agrees that if Ephemeral makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Ephemeral at the following address: 4 Oxford Rd. Ste B1, Milford CT 06460.
15 GENERAL PROVISIONS.
15.1 Electronic Communications. The communications between you and Ephemeral use electronic means, whether you visit the Services or send Ephemeral e-mails, or whether Ephemeral posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Ephemeral in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Ephemeral provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
15.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Ephemeral’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.3 Force Majeure. Ephemeral shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes, pandemics or shortages of transportation facilities, fuel, energy, labor or materials.
16.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact firstname.lastname@example.org. We will do our best to address your concerns.
15.4 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Ephemeral agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 14.1 will be litigated exclusively in the state courts in New York, New York or federal courts located in the Eastern District of New York.
15.5 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
15.6 Notice. Where Ephemeral requires that you provide an e-mail address, you are responsible for providing Ephemeral with your most current e-mail address. In the event that the last e-mail address you provided to Ephemeral is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Ephemeral’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Ephemeral at the following address: 4 Oxford Rd. Ste B1, Milford, CT 06460. Such notice shall be deemed given when received by Ephemeral by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.8 Severability. Subject to Section 14.5, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.9 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.
15.10 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.