Terms & Conditions
IMPORTANT NOTICE FOR RESIDENTS IN THE UNITED STATES AND CANADA ONLY: THIS AGREEMENT AND YOUR USE OF OUR SERVICES IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 11.
UPDATED: August 20, 2023.
We’ve drafted these Terms so you’ll know the rules that govern our relationship with you. These Terms form a legally binding contract between you and Anastasia Beverly Hills, LLC, so please read them carefully. By accessing or using the Services in any manner, including, but not limited to, making a purchase, visiting or browsing our websites, downloading any mobile applications, participating in our mobile service, registering an account, participating in our loyalty program or contributing content or other materials to the Services, you expressly understand, acknowledge and agree to be bound by these Terms. If you do not agree with them, then you should not use the Services.
Below is a table of contents of the issues addressed in our Terms. To go to the section described, please click on the heading.
TABLE OF CONTENTS
- THE TERMS AND ACCEPTANCE OF TERMS
- ABH PRODUCTS
- PRICING AND AVAILABILITY, RIGHTS OF REVOCATION, AND REFUNDS
- ABH MOBILE PROGRAM
- USER GENERATED CONTENT
- INTELLECTUAL PROPERTY AND OWNERSHIP; EXPORT CONTROLS
- DISCLAIMER OF WARRANTIES
- DISCLAIMER OF LIABILITY
- GOVERNING LAW
- DISPUTE RESOLUTION, ARBITRATION & CLASS ACTION/WAIVERS FOR USERS IN THE UNITED STATES AND CANADA
- AFFILIATES AND LINKS TO THIRD PARTY WEBSITES
1. THE TERMS AND ACCEPTANCE OF TERMS
Anastasia Beverly Hills, LLC. welcomes you to the Anastasia Beverly Hills web site (the “Site”). ABH maintains the Site for your personal enjoyment, information, education and shopping convenience. The following Terms & Conditions (“Terms” or “Agreement”) govern all use of our Site, any mobile applications (“Apps”), any loyalty rewards program, and any other websites, pages, features, or content (collectively, including the Site and Apps, the “Services”) owned and operated by ABH that direct to these Terms. Please note that our Services are not intended for use by children under the age of 16 years old.
The Services are owned and operated by Anastasia Beverly Hills, LLC, its affiliates, or its subsidiaries (together, “ABH,” “we,” “us” or “our”) and are offered subject to your acceptance without modification of all the terms and conditions contained herein and all other operating rules, policies, and procedures. You and we are collectively referred to as the “Parties.”
1.1 Updates to the Terms. We reserve the right to modify the Terms, at any time, in our sole discretion. The revised Terms will be effective on or after the posted date. If we make a material change to the Terms, we will provide you with notice of the revised Terms. If you have provided us your email address, we shall notify you of such changes via email. In addition, we may also provide notice by posting it on the Services or in another manner. If you do not agree to the new Terms, you should stop using the Services, and if you are a registered user, you may cancel your account with us within the notice period we specify by contacting us at email@example.com, and you will not be bound by the updated Terms. Otherwise, the updated Terms will take effect on the date listed in the notice we provide and your continued use of the Services shall be considered acceptance of the updated Terms.
1.2 Limits on Use. Some uses are not permitted for users of ABH’s Site and Services. You may only download material displayed on the Services for non-commercial, personal use—provided you also retain all copyright, trademark and other proprietary notices contained in the material, do not modify or alter the material and do not copy or post the material on any network computer or broadcast the material in any media. It is strictly prohibited to modify, transmit, distribute, reuse, re-post, “frame” or use the content of the Services including the art, text, images, audio and/or video for public or commercial purposes without written permission from an authorized representative of ABH. It is strictly prohibited to download the images of the products for sale within this Site. Tampering with the Services, misrepresenting the identity of a user, using buying agents or conducting fraudulent activities on the Services is prohibited.
1.3 ABH Privacy Policies. Please review our Global Privacy Notice for details about what personal data we collect, why we collect the information and your rights in relation to your information.
When you use our Services, including providing any information by placing orders through the Services, you agree to provide us with your email address, postal address and/or other contact details truthfully and exactly. You also agree that we may use this information to contact you in the context of your order if necessary.
1.4 Entire Agreement. These Terms, and any other legal agreements published on the Services, shall constitute the entire agreement (the “Agreement”) between you and ABH concerning the Services, and supersedes all prior terms, agreements, discussions and writings regarding the Services. In construing or interpreting the Terms & Conditions, headings are for convenience only, and not to be considered.
1.5 Severability. If any provision of the Terms is found to be unenforceable or unlawful by a court of competent jurisdiction, then that provision shall be deemed severable and not affect the validity of the remaining provisions of the Terms, which shall remain in full force and effect.
1.6 No Waiver of Any Terms. No waiver of any term shall be deemed a further or continuing waiver of such term or of any other term. Our failure to assert any right or provision under these terms shall not constitute a waiver of that right or provision.
1.7 Assignment. You may not assign or transfer this Agreement (or any of your rights or obligations under this Agreement) without prior written consent. Any attempted assignment or transfer without complying with the foregoing will be void. We may freely assign or transfer this Agreement. This Agreement inures to the benefit of and is binding upon the Parties and their respective legal representatives, successors, and assigns.
ABH’s products can be ordered and delivered worldwide. To see where ABH currently delivers its products, click the flag in the upper-right corner of ABH’s homepage to change your shipping country or unit of currency. Prices can also be displayed in the user’s home currency by making this selection. Please note that Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by ABH.
2.1 Not Evaluated by the U.S. FDA. All material and information presented by ABH is intended to be used for personal, educational or informational purposes only. The statements made about products by the manufacturers have not been evaluated by the U.S. Food and Drug Administration or any other government agency and the results reported, if any, may not necessarily occur in all individuals. The statements and products sold through ABH are not intended to diagnose, treat, cure or prevent any condition or disease. If any minor uses any goods or product from ABH it should be only after the legal or parental guardian has discussed the product with the minor's doctor.
2.2 Products to be Used in Accordance with Their Instructions. All products should be used only in accordance with their instructions, precautions and guidelines. You should always check a product’s ingredients before application to avoid potential allergic reactions.
2.3 No Provision of Medical Advice. Use of the Services is not meant to serve as a substitute for professional medical advice. ABH is solely an online store for prestige cosmetics. Please consult with your physician or health care practitioner regarding the use of any goods, products or information received from the Services before using or relying on them. Your physician or health care practitioner should address any and all medical questions, concerns and decisions regarding the possible treatment of any medical condition. ABH does not give or intend to give any answers to medical related questions and these Services do not replace any medical professional or medical resource. ABH does not represent itself as a physician nor is this implied. No prescription medications or medical treatments are intentionally provided on the Services. IF YOU ARE IN NEED OF MEDICAL ATTENTION, CALL 911 OR YOUR PHYSICIAN IMMEDIATELY.
2.4 No Sale or Resale. The products available on the Services, including any samples we may provide to you, are for your personal use only. You may not sell or resell any products you purchase or otherwise receive from ABH. ABH reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms, as determined by ABH in its sole discretion. Except where prohibited by law, ABH may limit the number of products available for purchase.
3.1 Pricing and Revocation of Offers. Prices and availability are subject to change without notice. Errors will be corrected where discovered, and ABH reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions, including after an order has been submitted. ABH may, at its own discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by the same user account or credit card, and also orders, which use the same billing and/or shipping address. Notification will be sent to the e-mail and/or billing address provided should such change occur.
3.2 Refunds. For information about shipping and returns, and shipping costs please consult ABH’s Shipping & Returns Policy at https://www.anastasiabeverlyhills.com/shipping.html. This Shipping & Returns Policy is directly incorporated into the Terms. For customers in the U.S., there will be a pre-paid label included in your shipment, and you will receive a refund only for the items returned. For international customers, shipping costs associated with the return will not be reimbursed, and you will receive a refund only for the items returned. For additional information relating to shipping costs, see our FAQs, available at https://www.anastasiabeverlyhills.com/faqs.html.
4.1 Signing Up and Opting-In to the Mobile Service. Enrollment in the Mobile Service requires you to provide your mobile phone number and to agree to these terms and conditions. You may not enroll if you are under 18 years old. Before the Mobile Service will start, you will need to agree to these Terms. ABH has the right to stop offering the Mobile Service at any time with or without notice. ABH also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so.
By opting into the Mobile Service, you:
- Authorize ABH to use an automatic telephone dialing system to send recurring automated text messages to the mobile phone number associated with your opt-in (i.e., the number listed on the opt-in form or, if none, the number from which you send the opt-in, or, if none, the number on file for the account associated with your opt-in).
- Acknowledge that you do not have to agree to receive messages as a condition of purchase.
- Confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt in.
- Consent to the use of an electronic record to document your opt-in. To request a free paper or email copy of the opt-in or to update our records with your contact information, please email our Customer Service team at firstname.lastname@example.org. To view and retain an electronic copy of these Terms or the rest of your opt-in, you will need (i) a device (such as a computer or mobile phone) with Internet access, and (ii) and either a printer or storage space on such device. For an email copy, you'll also need an email account you can access from the device, along with a browser or other software that can display the emails.
- Content You May Receive. Once you affirm your choice to opt-in to the Mobile Service on 47565, your message frequency may vary. You may receive alerts about:
- Sale promotions
- Event information
- Product launch announcements
- Cart reminders
- Back in stock alerts
- Price drop alerts
- Low inventory alerts
4.3 Charges and Carriers. When you use the Mobile Service, message and data rates may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your phone's pricing plan and the charges for sending and receiving text messages. You acknowledge that you are responsible for any message, data or other charges incurred (usage, subscription, etc.) as a result of using the Mobile Service.
Supported carriers are AT&T, T-Mobile, Verizon Wireless, Sprint, Boost, Virgin Mobile, U.S. Cellular, Cricket, Alltel, Cincinnati Bell, Cellcom, C-Spire, nTelos, MetroPCS, and other smaller regional carriers. The Mobile Service may not be available on all wireless carriers. ABH may add or remove any wireless carrier from the Mobile Service at any time without notice. ABH and the mobile carriers are not responsible for any undue delays, failure of delivery, or errors in messages.
4.4 To Stop the Mobile Service. To stop receiving text messages from ABH, text the word STOP to 47565 any time or reply STOP to any of the text messages you have received from ABH. This is the exclusive method for opting out. After texting STOP to 47565, you will receive one additional message confirming that your request has been processed.
4.5 Prohibited Activities. When you participate in the Mobile Service, you agree not to send or otherwise make available content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, or contains hate speech. You acknowledge that ABH may or may not monitor or screen mobile message content you provide, but shall have the right, without obligation and in its sole discretion, to monitor, screen, or refuse any content you make available, including content that violates these Mobile Program Terms. By participating in the Mobile Program from a mobile telephone number, you are representing to ABH that the mobile number from which you have used is one for which you are authorized to provide consent to receive mobile messages from ABH. You agree that if and before you disconnect or transfer your mobile number, you will send all necessary short codes to ABH in order to stop future messages from being sent to that number.
4.6 Miscommunication. ABH is not responsible for incomplete, lost, late, or misdirected messages, including, but not limited to, undelivered messages resulting from any form of filtering by your mobile carrier or service provider, and cannot guarantee that each user will receive the benefit of the Mobile Program for each mobile message sent. ABH reserves the right, in its sole discretion, to cancel or suspend any or all of its Mobile Program, in whole or in part, for any reason, with or without notice to you.
When you post content that you have created (“User Generated Content”) using our Site or Services, you acknowledge that your posts are public, for everyone to see, use, copy, and share.
We have no obligation, but reserve the right, to monitor, flag, delete, or refuse to reproduce any User Generated Content we believe may be in violation of these Terms, and to cancel any order(s) based on such User Generated Content. Under no circumstances will ABH be liable in any way for any loss of any User Generated Content. The Services are not intended as a storage depository for User Generated Content. You are responsible for retaining copies of your User Generated Content. We do not endorse any User Generated Content, or any opinion, recommendation or advice expressed therein, and we disclaim all liability with respect to the content posted by third parties.
You retain ownership of all User Generated Content you submit, and you grant us and our designees the non-exclusive right to use such on the Site and elsewhere in our discretion, including in our marketing materials.
By posting content to ABH, you represent and warrant that:
- You understand you are participating in a public forum and that your User Generated Content and other personal data will be available to all other users of ABH Services;
- You are the sole author and owner of the intellectual property and other rights thereto (or have the necessary licenses, rights, consents and permissions to use and provide a non-exclusive license to use all intellectual property and other rights to enable inclusion and use of the content in the manner allowed by these Terms);
- You understand that your content may be utilized and distributed by ABH in its marketing materials;
- You shall comply with the Federal Trade Commission’s Guides on the Use of Endorsements and Testimonials in Advertising. Without limiting the generality of the foregoing, this means that if you received compensation in any form (including free products) or any other incentive (like entering a sweepstakes, or even receiving a coupon) in exchange for posting content (including but not limited to product reviews, Q&A, photographs, and social channels), then this must be disclosed in the same post. All disclosures must be made clearly and conspicuously;
- All “moral rights” that you may have in such content have been voluntarily waived by you and you do not require that any personally identifying information be used in connection with the content that you submit, or any derivative works of or upgrades or updates thereto
- All content that you post is accurate;
- You are at least 16 years old and, if you are a minor, you have obtained the consent of your parent or legal guardian to use the Site and their agreement to these Terms;
- The content you supply does not violate these Terms and will not cause injury to any person or entity.
You also represent and warrant that any content you submit:
- Is not false, inaccurate or misleading;
- Does not harm minors;
- Does not elicit or provide medical advice;
- Does not infringe any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy of any person or entity;
- Does not violate any obligations you may have with respect to such content under any law or under contractual or fiduciary relationships (such as, but not limited to, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Does not violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
- Is not, or would not reasonably be considered to be, unlawful, harmful, defamatory, trolling, bullying, libelous, vulgar, obscene, invasive of another's privacy, hateful, racially or religiously biased or offensive, abusive, tortious, threatening or harassing to any individual, partnership or corporation;
- Is relevant to the product being rated and reviewed or about which a question or answer is submitted;
- Does not include any information that references other websites, addresses, email addresses, contact information or phone numbers;
- Complies in all respects with these Terms & Conditions, our Global Privacy Notice and all any other posted guidelines and rules;
- Is not a form of phishing and does not contain unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- Does not contain any computer viruses, worms or other potentially damaging computer programs or files; and
- Does not impersonate any person or entity, including, without limitation, any ABH employee, or falsely states or otherwise misrepresents your affiliation with a person or entity. You may not use the Services to collect or store personal data about other users.
6.1 ABH Proprietary material. Content included on or comprising the Services, including information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds and other material, excluding User Generated Content (collectively “Proprietary Material”) are protected by copyrights, trademarks, patent or other proprietary rights, and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Proprietary Material is copyrighted as a collective work under the U.S. and international copyright laws, and ABH owns, to the fullest extent allowed by such laws, the copyright in the selection, coordination, arrangement, and enhancement of such Proprietary Material. Except as expressly authorized or licensed, you may not copy, modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale, lease or rental of, create derivative works from or in any way exploit any of the Proprietary Material, in whole or in part. Modification of the materials appearing on the Services or use of such materials for any other purpose is a violation of our copyright and other proprietary rights.
6.2 Logos and Trademarks. The ABH logos and other trademarks on the site are the property of their respective owners and are owned by, licensed to, or, where required, used with permission by ABH and may not be reproduced, copied, or manipulated in any manner without the express, written approval of the trademark owner.
6.3 Do Not Share Confidential or Proprietary Information on the Site. ABH does not want to receive confidential, proprietary or trade secret information through the Services (excluding information relating to any order you submit). Please note that any information, materials, suggestions, ideas or comments sent to the Services will be deemed non-confidential, and, by submitting any such information, you are granting ABH an irrevocable and unrestricted license to use, modify, reproduce, transmit, display and distribute such materials, information, suggestions, ideas or comments for any purpose whatsoever. We will not use your name in connection with any such materials, information, suggestions, and ideas or comments unless we first obtain your permission or are otherwise required by law to do so.
6.4 U.S. Export Controls. Certain software from the Services may be further subject to United States Export Controls. No such software from this site may be downloaded or exported contrary to any such laws, which may include prohibitions against download or export 1) into (or to a national or resident of) Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Syria or any other country to which the United States has embargoed goods; or 2) anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using software, you agree to abide by the laws, rules and regulations including, but not limited to the Export Administration Act and the Arms Export Control Act applicable to such download or use and not to transfer, by electronic transmission or otherwise, any content derived from ABH to either a foreign national or a foreign destination in violation of any such laws.
6.5 Claims Regarding Copyright Infringement. ABH respects the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any User content or other content on the Site infringes your copyright, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
- A physical or electronic signature of the copyright owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, and if multiple copyrighted works are to be covered by a single notification, a list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled. Please also provide information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as your name, address, telephone number, and your email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement, under penalty of perjury, that the information in the above notification is accurate and that you are, or are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed.
Please note that if you fail to comply with all of the requirements set forth above, your DMCA notification may not be effective. Our designated Copyright Agent to receive notifications of claimed infringement is:
- Greenberg Traurig, LLP
- ATTN: Joel Feldman
- 101 2nd Street, Ste 2200
- San Francisco, CA 94105
After receiving an effective notification of claimed infringement, we will process and investigate the claim and, if appropriate, act expeditiously to remove or disable access to material claimed to be infringing.
If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
- Your physical or electronic signature.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the federal district court in Los Angeles, California, and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.
This notification process does not limit ABH’s ability to exercise any other rights or pursue any other remedies it may have to address claims of infringement.
6.6 Account Termination. It is our policy to terminate, in appropriate circumstances, the accounts or access of users who repeatedly infringe copyrights. We may, in appropriate circumstances, terminate your account for the Site and any or all affiliate websites if you are a repeat infringer. If you believe that a user is a repeat infringer, please follow the instructions above to contact our Copyright Agent and provide information sufficient for us to verify that the user is a repeat infringer
The Site is provided on an “AS IS,” “as available” basis. Neither ABH nor its affiliates, subsidiaries, or designees nor each of their respective officers, directors, employees, agents, third-party content providers, designers, contractors, distributors, merchants, sponsors, licensors or the like (collectively, “Associates”) warrant that use of the Site will be uninterrupted or error-free. Neither ABH nor its associates warrant the accuracy, integrity or completeness of the content provided on the Site or the products or services offered for sale on the Services. ABH makes no representations or warranties of any kind, express or implied, as to the operation of the Site or the information, content, materials, or services included thereon, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. In particular, ABH does not warrant that the Site, its servers, or communications (including email) sent from ABH are free of viruses or other harmful components. No oral advice or written information given by ABH, nor its Associates, shall create a warranty. You expressly agree that use of the Services is at your sole risk.
UNDER NO CIRCUMSTANCES SHALL ABH OR ITS ASSOCIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF INFORMATION OR DATA, RELIANCE BY A USER ON ANY INFORMATION OBTAINED AT THE SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF TERRORISM, ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ABH RECORDS, PROGRAMS OR SERVICES.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF ABH HAS BEEN ADVISED OF OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, MERCHANDISE AND SERVICES AVAILABLE THROUGH THE SERVICES. BECAUSE SOME STATES CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; ACCORDINGLY, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
The preceding section does not apply to New Jersey residents.
You agree to release, indemnify, and defend Anastasia Beverly Hills, LLC. and any subsidiaries, affiliates, related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each (the “ABH Entities”) from all third-party claims and costs (including reasonable attorneys’ fees) arising out of or related to: (1) your use of the Services; (2) your conduct or interactions with other users of the Services; (3) your breach of these Terms. We will notify you promptly of any such claim and will provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.
The Services are created, operated and controlled by ABH in the State of California, United States of America. As such, the laws of the State of California will govern these Terms & Conditions without giving effect to any principles or conflicts of laws. We reserve the right to make changes to the Services at any time. Changes to these Terms will be made and become binding upon you in accordance with Section 1.1 of these Terms.
- 11. DISPUTE RESOLUTION, ARBITRATION & CLASS ACTION/WAIVERS FOR USERS IN THE UNITED STATES AND CANADA
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. YOU UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. YOU FURTHER UNDERSTAND THAT THE RIGHTS TO DISCOVERY AND APPEALS MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
- Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Most concerns may be quickly resolved in this manner. For any dispute with ABH, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. Your notice of dispute must be individual to you and must include, as applicable, your name, your email address, and your residential address. The notice of dispute also must explain the facts of the dispute as you understand them and tell us what you want us to do to resolve the issue. The Parties shall use their best efforts to settle any dispute directly through consultation and good faith negotiations, and you agree that a notice of dispute containing all of the information required above, followed by at least 60 days of good faith negotiation, are preconditions to either party initiating a lawsuit or arbitration. A notice of dispute will not be valid unless it contains all of the information required by this paragraph. If you commence an arbitration without having previously provided a valid and compliant notice of dispute, you and we agree that the applicable arbitration provider (or the arbitrator, if one has been appointed) must suspend the arbitration pending compliance with this paragraph. You and we authorize the arbitration provider or the arbitrator to decide summarily whether the party that commenced an arbitration complied with these notice requirements, relying solely on these Terms and the notice of dispute provided (if any). All statutes of limitation shall be tolled while the Parties engage in the informal dispute resolution process required by this paragraph.
The Parties acknowledge that these Terms evidences a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of this Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Except in the event of a Mass Arbitration (as defined below), the Parties agree that all Claims shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures as modified by these Terms, but excluding any rules or procedures that permit arbitration on a class-wide basis (collectively, the “JAMS Rules”). The JAMS Rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. The seat of the arbitration will be decided pursuant to the JAMS Rules. You or ABH may elect to appear at the arbitration in person or, if you and we both agree, to conduct it remotely online via appropriate videoconferencing technology, in lieu of appearing live.
Each party will have the right to use legal counsel in connection with arbitration at its own expense. The Parties shall select a single neutral arbitrator in accordance with the JAMS Rules. Except as expressly stated to the contrary below, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all arbitrability issues, as well as all issues or Claims arising out of or relating to the interpretation, applicability, or enforceability of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. In any arbitration before JAMS, the Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of these Terms) with respect to any final award in an arbitration arising out of or related to these Terms.
If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous and not in bad faith, we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration, unless the arbitrator determines that the claim was frivolous or brought in bad faith, in which case the arbitrator may award us our attorney’s fees, expert witness fees, arbitration fees and/or costs. We will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
- Class Action and Class Arbitration Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION, COLLECTIVE ACTION OR CLASS ARBITRATION, OR AS A PRIVATE ATTORNEY GENERAL. To the extent applicable law does not permit waiver of private attorney general claims, but permits them to be arbitrated, then such claims shall be resolved in arbitration. You and we each further agree to waive our respective right to file a class action or seek relief on a class basis. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If a court or arbitrator decides that any part of this Agreement to Binding Arbitration cannot be enforced as to a particular request for public injunctive relief, then that request for public injunctive relief (and only that request for public injunctive relief) must be brought in court and must be stayed pending arbitration of the arbitrable remedies.
- Exceptions to Arbitration. Notwithstanding the Parties’ agreement to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation. Excluded claims are subject to the jurisdiction provisions in Section 13 below.
Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed, either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case.
- Exception—Mass Arbitration Before NAM. Notwithstanding the Parties’ decision to have arbitrations administered by JAMS, in the event 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the Parties submitting the demands are the same or coordinated, you and we agree that the demands will constitute a “Mass Arbitration.” If a Mass Arbitration is commenced, you and we agree that it shall not be governed by the JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by National Arbitration & Mediation (“NAM”), a nationally recognized arbitration provider, and governed by the NAM rules in effect when the Mass Arbitration is filed as modified by these Terms, including the NAM Mass Filing Supplemental Dispute Resolution Rules, but excluding any rules that permit arbitration on a class-wide basis (collectively, the “NAM Rules”). The NAM Rules are available at www.namadr.com or by calling 1-800-358-2550. Notwithstanding anything to the contrary above, you and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from a court of competent jurisdiction compelling compliance with this agreement and compelling administration of the Mass Arbitration before NAM. Pending resolution of any such requests to a court, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed. You and we acknowledge that either party’s failure to comply with this paragraph would irreparably harm the other, and you and we agree that a court may issue an order staying the arbitrations (and any obligation to pay arbitration fees) until any disagreements over the provisions of this paragraph are resolved by the court.
- 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 above by sending written notice of your decision to opt-out by emailing us at firstname.lastname@example.org, and providing the following information: (i) your name, (ii) your email address; (iii) your mailing address; and (iv) a statement of your wish not to resolve disputes with ABH through arbitration. The notice must be sent within thirty (30) days of your first use of the Service following the effective date of these Terns; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
- Term for Cause of Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within two (2) years after such claim or cause of action arose or be forever barred.
To the extent that the arbitration provisions set forth above do not apply or if you have opted out of arbitration, you and we agree to submit to the personal jurisdiction of the state and federal courts located in Los Angeles County, California, and you and we agree that any litigation shall be filed exclusively in state or federal courts located in Los Angeles County, California (except for small claims court actions which may be brought in the county where you reside). In the event of litigation not subject to these Terns to Binding Arbitration, you and we agree to waive, to the maximum extent permitted by law, any right to bring a class action or any right to a jury trial, except where a class action or jury trial waiver is not permissible under applicable law.
The Services contain, or may contain, links to other third party sites. ABH makes no representations whatsoever about any other web sites which you may access through the Services. When you leave the Services, please understand that ABH has no control over the content on that web site. In addition, a link to a non-ABH web site does not imply and does not constitute sponsorship, endorsement, approval or responsibility for the content, or the use of such third-party web site. ABH makes no representation or warranty as to any third-party products or services. No rights to use or copy the information on this or the third-party site are granted or implied.
We welcome your questions and comments about these Terms. You may contact us anytime via email at email@example.com.