IF YOU LIVE IN THE UNITED STATES, BY USING THIS WEBSITE [OR APPLICATION], YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND INSTEAD YOU AGREE TO HAVE ALL DISPUTES DECIDED BY AN ARBITRATOR. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL TO SETTLE DISPUTES RELATING TO YOUR USE OF THIS WEBSITE [OR APPLICATION] AND THE PRODUCTS [AND SERVICES] OF DC LABS INC. DBA OVATION HAIR’S PRODUCTS, AS STATED FULLY IN SECTION 27 BELOW.
Last Updated: June 15, 2016
1. KEY TERMS
“User” means any visitor to the http://ovationhair.com Site [or Application], regardless of whether the visitor registers for the Site [or Application] or purchases any Ovation Hair products [or services] and is referred to herein as “user” or “you.”
Ovation Hair owns and operates the http://ovationhair.com website and other websites through which Ovation Hair advertises and sells its products [and services] (collectively, the “Site”), [as well as applications for mobile, tablet, and other smart devices and application programs (collectively, the “Application”)].
“Content” means text, graphics, images, software [(excluding the Application)], audio, video, information, and other materials.
“Uploaded Content” refers to any photographs, comments, video clips, or other media you may upload to the Site [or Application].
“Website Content” refers to any and all materials contained on the Site [and Application], including, without limitation, all Ovation Hair product logos, design, text, graphics, software, other files, and the selection and arrangement thereof.
2. USE OF SITE [and APPLICATION]
3. ELIGIBILITY TO USE THE SITE [and APPLICATION]
The Site [and Application] [is/are] intended solely for persons who are sixteen (16) years or older. Any access to or use of the Site [or Application] by anyone under the age of sixteen (16) is expressly prohibited. By accessing or using the Site [or Application], you represent and warrant that you are at least sixteen (16) years old.
5. USER CONDUCT
You must only use this Site [or Application] for lawful purposes, and you must not use it in any way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Site [or Application]. You may not, without Ovation Hair’s written consent: (i) copy, reproduce, use, or otherwise deal with any content on the Site [or Application]; (ii) modify, distribute, or re-post any content on the Site [or Application] for any purpose; or (iii) use the content of the Site [or Application] for any commercial exploitation whatsoever.
In using the Site [or Application], you further agree not to (i) disrupt or interfere with the security of, or otherwise abuse, the Site [or Application], or any services, systems resources, accounts, servers, or networks connected to or accessible through the Site [or Application], or affiliated or linked websites; (ii) disrupt or interfere with any other user’s enjoyment of the Site [or Application], or affiliated or linked websites; (iii) upload, post, or otherwise transmit through or on the Site [or Application] any viruses or other harmful, disruptive, or destructive files; (iv) use, frame, or utilize framing techniques to enclose any Ovation Hair trademark, logo, or other proprietary information (including, but not limited to, the images found on the Site, website content, the content of any text, or the layout/design of any page or form contained on a page) without Ovation Hair’s express written consent; (v) use meta tags or other “hidden text” utilizing a Ovation Hair name, trademark, or product name without Ovation Hair’s express written consent; (vi) deep link to the Site [or Application] without Ovation Hair’s express written consent; (vii) create or use a false identity on the Site [or Application], share your account information, or allow any person besides yourself to use your account to access the Site [or Application]; (viii) collect or store personal data about others; (ix) attempt to obtain unauthorized access to the Site [or Application] or portions of [it/them] that are restricted from general access; and (x) post any material that is knowingly false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violative of any law. You also agree not to post any copyrighted material unless the copyright is owned by you or by Ovation Hair.
You also agree that you will comply with all applicable local, national, and international laws and regulations relating to your use of or activities on the Site [and Application]. To the extent permissible by law, Ovation Hair will not be responsible or liable to any third party for the content or accuracy of any materials posted by you or any other user on the Site [or Application]. We have the right to remove any material or posting you make on the Site [or Application] if, in our sole discretion, such material does not comply with the standards set out in these Terms.
If you do not agree to these Terms, you do not have our consent to obtain information from or otherwise use the Site [or Application]. Failure to use the Site [or Application] in accordance with these Terms may subject you to civil or criminal penalties.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SITE [OR APPLICATION], AND/OR DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE [OR VIA THE APPLICATION], YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE [OR APPLICATION]. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE [OR APPLICATION]. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or legal entity to these Terms and, in such event, “you” or “your” will refer and apply to that company or other legal entity.
6. CONTENT UPLOADED TO THE SITE [or APPLICATION]
In the event that you upload any Uploaded Content to the Site [or Application], Ovation Hair has the right to use any and all such elements of the Uploaded Content in connection with and/or as part of Ovation Hair’s business, including in connection with and/or in any advertising in any and all media, including, without limitation, product packaging, printed publications, presentations, promotional materials, events, and associated marketing materials, television and cinema commercials, videos, or the Site [or Application] in perpetuity throughout the world as Ovation Hair in its sole discretion sees fit without further consent by, or payment to, you. By uploading original content to the Site [or Application], you agree to grant Ovation Hair the right to use your copyright. Ovation Hair has all right, title, and interest in any and all results and proceeds from such use of the Uploaded Content to the extent permissible by law. Ovation Hair has the right to transfer the aforementioned rights to use the Uploaded Content to any third party, including, but not limited to, any of its subsidiaries or affiliated companies.
Ovation Hair may alter, adopt, or edit the Uploaded Content and any further material created under these Terms, and market and exploit it entirely at Ovation Hair’s sole discretion. Ovation Hair is not obligated to make use of any of the Uploaded Content or exercise any of the rights granted by these Terms.
Users of the Site [or Application] must only post Uploaded Content that is owned by, and features, themselves and no other third parties.
Users posting Uploaded Content via a user profile must treat their login credentials and password confidentially and ensure that they are not shared with any third party that might jeopardize the security of their accounts.
7. CHANGES TO THE SITE [or APPLICATION]
Ovation Hair reserves the right, at its sole discretion, to modify the Site [or Application] and these Terms at any time and without prior notice. If we modify these Terms, we will either post the modification on the Site [or via the Application]. We will also update the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Site [or Application] after we have posted a modification on the Site [or via the Application], you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not agreeable to you, your only recourse is to stop using the Site [or Application].
Ovation Hair may, in its sole discretion, terminate, change, modify, suspend, make improvements to, or discontinue any aspect of the Site [or Application] and any products [or services] available through or outside the Site [or Application], temporarily or permanently, including the availability of any features of or access to the Site [or Application], after providing reasonable notice, and you agree that Ovation Hair will not be liable therefor.
8. LINKED WEBSITES
The Site [and Application] may contain links to third party websites or resources. Ovation Hair makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of websites accessible by hyperlinks from the Site [or Application], or websites linking the Site [or Application]. The linked websites are not under the control of Ovation Hair, and Ovation Hair is not responsible for the content of any linked website or any link contained in a linked website, or any review, changes, or updates to such websites. You accept sole responsibility for and assume all risk arising from your use of any such websites or resources, or the content, products, or services on or available from such websites or resources.
9. COPYRIGHT and TRADEMARKS
The Site [and Application], including all of the Content, [is/are] protected by copyright, trademark, and other laws of the United States [and foreign countries]. Unless expressly stated otherwise, Ovation Hair retains other proprietary rights in all products [and services] available through the Site [and Application]. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, and or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without the prior written consent and permission of Ovation Hair or the respective copyright owner. You may not, without the express written permission of Ovation Hair or the respective copyright owner (i) copy, publish, or post any materials on any computer network or broadcast or publications media; (ii) modify the materials; or (iii) remove or alter any copyright or other proprietary notices contained in the materials. You also may not (i) sell, resell, or make commercial use of the Site [or Application], [its/their] website content, services, or products obtained through the Site [or Application]; (ii) collect or use any product listings or descriptions; (iii) make derivative uses of the Site [or Application] or [its/their] Content; or (iv) use any data mining, robots, or similar data gathering and extracting methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of Ovation Hair or any third party.
Together with other logos and product names appearing on the Site [or Application], the following includes a partial list of trademarks and/or registered trademarks of Ovation Hair in the United States and other countries: [Ovation Cell Therapy®, Ovation Hair®, Ovation for Healthy Hair®, Ovation Nation®, and Ovation Hair Thicker Stronger Longer®. These and all other Ovation Hair trademarks may not be copied, imitated, or used, in whole or in part, without the prior written permission of Ovation Hair or the rights holder. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Ovation Hair, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Ovation Hair.
10. COPYRIGHT POLICY and COPYRIGHT AGENT
It is Ovation Hair’s policy to respect the copyright and intellectual property rights of others. Ovation Hair may remove content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, Ovation Hair may terminate access by users who appear to infringe the copyright or other intellectual property rights of others.
Ovation Hair complies with the Digital Millennium Copyright Act. If you believe Ovation Hair or any user of the Site [or Application] has infringed your copyright in any material way, please notify Ovation Hair, and provide the following:
- an identification of the intellectual property right claimed to have been infringed;
- an identification of the material you claim is infringing so that we may locate it on the Site [or Application];
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the owner or its licensee, or the agent of either of the foregoing, or the law;
- a statement by you that the above information in your notice is accurate and made under penalty of perjury; and
- that you are authorized to act on behalf of the owner of the intellectual property interest involved.
Please direct inquiries regarding intellectual property infringement issues by email to [email protected] by phone at 1-888-411-3252, or by writing to DC Labs Inc. dba Ovation Hair, PO Box 130008, Carlsbad, California 92013.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, the remainder of this section, immediately below, does not apply to you.
You agree to indemnify and hold harmless Ovation Hair, its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers from any claim, action, demand, loss, or damages made or incurred by any third party arising out of or relating to your use of the Site [or Application], your violation of these Terms, or your violation of any rights of a third party, to the extent permissible by law. YOU AGREE TO BE RESPONSIBLE FOR SUCH DAMAGES, CLAIMS, OR LOSSES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
11. PRODUCT INFORMATION
For questions about the products [or services] on the Site [or Application], please use the Contact Us links found on each page or section of the Site [or Application]. For questions about orders placed through the Site [or Application] or otherwise, please contact us at [email protected] link in the email receipt you receive or by filling out the Contact Form found on the Site [and Application].
12. PRODUCT GUARANTEE and RETURN POLICY
We offer a 365 day, 100% guarantee on our entire line of Ovation Hair products. If you are not satisfied with your most recent purchase, please return the product and a copy of your receipt for a full refund, less shipping and handling, to:
PO Box 130008
Carlsbad CA 92013
Refunds are processed back to the card used for the original purchase. Product bottles are required to complete the refund process. You may also call Client Services at 1-888-411-3252 for assistance.
13. PRODUCT [and SERVICE] DESCRIPTIONS
We have taken reasonable precautions to ensure that all product descriptions, prices, and other information shown on the Site [and Application] are correct and fairly described. By placing an order on this Site [or Application], you are making an offer to Ovation Hair. Ovation Hair reserves its right to not accept the offer if there has been a material error in the description of the product [or service], or if the price advertised is incorrect. All prices are displayed in United States Dollars unless expressly indicated otherwise. Packaging may vary from that shown on the Site [or Application]. Any weights, dimensions, and capacities shown on the Site [and Application] are approximate only. All items are subject to availability and we will inform you as soon as reasonably possible if the product(s) you have ordered is/are not available.
Please also note that the terms of any products [or services] offered by Ovation Hair and/or purchased by you, such as pricing, specifications, delivery times, and/or package contents are subject to change by Ovation Hair by providing you reasonable advanced notice, including by posting notice of the change on the Site [or Application] or sending you an email to the address you provided at purchase.
14. ORDER AND PAYMENT INFORMATION
If you use the Site [or Application] or other means to purchase a product, payment must be received by Ovation Hair prior to Ovation Hair’s acceptance of an order, unless otherwise agreed in advance by Ovation Hair. All Ovation Hair products shipped to a California address are subject to sales tax, which will be applied to your order total. Ovation Hair may need to verify information you provide before Ovation Hair accepts an order, and may cancel or limit an order any time after it has been placed. If payment has already been made and your order is cancelled or limited, Ovation Hair will refund you any payment made for the product that will not be shipped due to cancellation or limitation of an order in the same tender as the original purchase. Ovation Hair expressly conditions its acceptance of your order on your agreement to these Terms.
In ordering products [or services] through the Site, [Application], or otherwise, you agree to provide only true, accurate, current, and complete information. You hereby certify that any email account you provide to Ovation Hair is registered by you. Ovation Hair will have the right to bar your access to and use of the Site [or Application] if it has reasonable grounds to believe you have provided untrue, inaccurate, not current, or incomplete information to Ovation Hair, or for any other reason Ovation Hair, in its sole discretion, deems appropriate. You agree that if you are ordering or purchasing products [or services] on behalf of someone else, you have sufficient authority to bind that person to these Terms. You agree that your placement of an electronic order on the Site [or Application] is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
Ovation Hair will add applicable shipping and handling fees to your charges, as stated in your order. Ovation Hair will not accept orders where the stated delivery address is outside the United States or Canada.
Ovation Hair’s descriptions of, or references to, products [or services] not owned by Ovation Hair on or outside of the Site [or Application], if any, do not imply endorsement of that product [or services] or constitute a warranty by Ovation Hair.
15. INTERNATIONAL ORDERS
Generally, Ovation Hair does not directly sell products [or services] in any jurisdiction other than the United States of America. While Ovation Hair may choose to accept orders for the purchase of its products [or services] from non-residents in the United States, the acceptance of such orders and the sale of such products [or services] will only be based on the following conditions precedent:
- You agree that the purchase of any Ovation Hair products by you, as a non-resident of the United States, will be (i) ex works Ovation Hair’s facilities in the United States per Incoterms 2010, with all title risk and loss in the products passing to you in the United States, and (ii) for your own personal use only and not for further resale or distribution in any manner.
- You hereby expressly authorize and direct Ovation Hair to load and ship the products purchased by you to your designated ship to destination, and to contract on your behalf with a common carrier or courier company for that purpose.
- You are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties, and import requirements from Ovation Hair’s facilities in the United States to your foreign ship to destination. We may display shipping costs with estimated VAT and broker fees for your convenience only. You agree to be responsible for VAT, broker fees, duties, or any penalties that may apply if Ovation Hair’s estimated shipping costs result in unpaid duties, taxes, or fees.
- The United Nations Convention on the International Sale of Goods will not apply to any purchase or sale, and Ovation Hair expressly opts out of such application.
16. AUTO-RENEWAL PROGRAMS
If you are purchasing Ovation Hair’s products [or services] and enrolling in our Replenishment Program, an auto-renewal program in which you have requested that we provide products [or services] to you automatically at scheduled times, your membership in the program (the “Program”) will remain in effect until cancelled. If you sign up for the Program on the Site [or Application] in connection with your purchases, the payment card or alternative payment method you provide will be automatically charged [for the purchase price of the products [or services], plus applicable tax and shipping and handling charges].
If you sign up for the Program, you will be charged regularly and automatically for, and delivered, ordered products [or services] until you cancel your participation in the Program. By participating in the Program, you agree that Ovation Hair may send you additional regularly scheduled shipments and charge you for the product(s), applicable taxes, and shipping and handling charges, WITHOUT OBTAINING ANOTHER PAYMENT AUTHORIZATION FROM YOU. These subsequent charges will be placed on the payment card or alternative payment method you provided when you enrolled in the Program. You agree that you will be responsible for any and all overdraft charges, interest charges, late or other fees, or damages (including consequential damages) you may incur as a result of charges placed on the payment card or alternative payment method you provided when you signed up for the Program.
THE AUTO-RENEWAL PROGRAM WILL REMAIN IN EFFECT UNTIL YOU CANCEL IT. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN THE PROGRAM AND DISCONTINUE SHIPMENT OF FUTURE PRODUCTS, YOU MAY DO SO BY CONTACTING OVATION HAIR AT 1-888-411-3252.
Ovation Hair may, in its sole discretion, terminate your participation in the Program at any time without notice to you. Ovation Hair reserves the right to refuse or discontinue the automatic provision of products [or services] to any one at any time in its sole discretion. You must provide current, complete, and accurate information for your shipping and billing accounts. You are responsible for insuring this information is correct and must promptly update all information to keep your account current, complete, and accurate (for example, to reflect changes in shipping or billing address, credit card number, credit card expiration date, or security code). Shipments sent to the address of record are deemed complete upon shipment; Ovation Hair is not responsible for your failure to receive a shipment sent to your address of record in the event you have moved or for any other reason. You must promptly notify Ovation Hair if your credit card or alternative payment method is cancelled or no longer valid (for example, due to theft or loss). Changes to your account can be made by contacting a client service representative at 1-888-411-3252.
All Ovation Hair products are shipped out of our San Diego, California warehouse via UPS, Monday through Friday. Orders ship within three business days of being placed. Delivery times range from one to seven days and depend on location, time, and day of the week the order is placed. Delivery can take up to seven days for an order to reach the East Coast. UPS delivers Monday through Friday. Saturday deliveries can be arranged for an additional charge. Expedited shipping options are available upon request.
Although Ovation Hair may provide delivery or shipment timeframes or dates, you understand that those are our good faith estimates and may be subject to change. You further understand that product [or service] availability may be limited and particular products [or services] may not be available for immediate delivery, in which case the products [or services] will be delivered when they become available. To the extent permissible by law, Ovation Hair will not be liable for any loss, damage, cost, or expense relating to any delay in shipment or delivery. This means that YOU AGREE TO RELEASE OVATION HAIR FROM LIABILITY FOR ANY SUCH DAMAGES, AND YOU CANNOT PURSUE A LEGAL REMEDY FOR SUCH DAMAGES, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
Shipping and handling charges may apply and increase with the value of your order. Shipping and handling charges are subject to change. [Freight charges for orders shipped outside the United States will be based on actual postage rates.]
18. DISCLAIMER OF WARRANTIES RELATING TO USE OF THE SITE [and APPLICATION]
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO THE SITE [OR APPLICATION] REMAINS WITH YOU. NEITHER OVATION HAIR NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE [OR APPLICATION] WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTION DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE [OR APPLICATION], FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE [OR APPLICATION] OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE [OR APPLICATION], WHETHER BASED ON WARRANTY, CONTRACT, OR TORT (INCLUDING NEGLIGENCE), AND WHETHER OR NOT OVATION HAIR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL OVATION HAIR’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY WARRANTIES IN THE CONTENT OR THESE TERMS AND YOUR USE OF THE SITE [OR APPLICATION] INCLUDING, BUT NOT LIMITED TO, FROM YOUR PURCHASE OF ANY PRODUCTS [OR SERVICES] VIA THE SITE [OR APPLICATION], OR FROM THE USE OF OR INABILITY TO USE THE SITE [OR APPLICATION], EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR PRODUCTS [OR SERVICES] PURCHASED VIA THE SITE [OR APPLICATION] IN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND OVATION HAIR. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
You agree to release, defend, indemnify, and hold harmless Ovation Hair, its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers from and against any claim, action, demand, loss, liability, expenses, or damages (compensatory, direct, incidental, consequential, or otherwise), arising out of or in any way connected with your access to or use of the Site [or Application] or your violation of these Terms. YOU AGREE TO BE RESPONSIBLE FOR SUCH DAMAGES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
20. LIMITATIONS ON LIABILITY
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
WE EXCLUDE ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND TERMS (WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE) TO THE FULLEST EXTENT PERMITTED BY LAW.
TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT OVATION HAIR AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES, CLAIMS, OR LOSSES INCURRED (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED, OR UNDER ANY THEORY OF LIABILITY – EVEN OVATION HAIR’S OWN ACTIVE OR PASSIVE NEGLIGENCE – ARISING IN CONNECTION WITH (I) THE SITE [OR APPLICATION]; (II) THE USE OR INABILITY TO USE THE SITE [OR APPLICATION]; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE [OR APPLICATION]; (IV) THE PURCHASE OR USE OF ANY PRODUCTS THROUGH THE SITE[, APPLICATION,] OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OR DATA OR OTHER INFORMATION THAT IS SENT TO OR RECEIVED BY THE SITE; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THESE TERMS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF OVATION HAIR OR ITS REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OVATION HAIR’S LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST TWELVE (12) MONTHS TO OVATION HAIR FOR ANY PRODUCTS [OR SERVICES] SUPPLIED BY OVATION HAIR THROUGH YOUR USE OF THE SITE[, APPLICATION,] OR OTHERWISE.
OVATION HAIR WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
THESE EXCLUSIONS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF CALIFORNIA. IF ANY PROVISION OR PART-PROVISION OF THESE TERMS IS DECLARED INVALID, UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, IT WILL BE DEEMED SEVERABLE AND WILL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OF THESE TERMS.
The terms of this section survive any termination of these Terms.
21. INTERNATIONAL USERS
Our website is controlled, operated, and administered by Ovation Hair from its offices in California, United States of America. Ovation Hair makes no representation that materials on the Site [or Application] are appropriate or available for use at other locations outside the United States, and access to them is prohibited from territories where the contents or products [or services] available through the Site [or Application] are illegal. You may not use the Site [or Application] or export its website content or products in violation of United States export laws and regulations. If you access the Site [or Application] from a location outside of the United States, you are responsible for compliance with all local laws.
Ovation Hair is not responsible for any injury or damage that may result from the purchase of its products through distributors or retailers who are not authorized distributors or retailers of Ovation® products. Ovation Hair is not responsible for any injury or damage that may result from products purchased past their expiration date or those that have been discontinued.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
Notwithstanding any of these Terms, Ovation Hair reserves the right, without notice and in its sole discretion, for any reason or no reason, to terminate your ability to use the Site [or Application] and to block and prevent future access to and use of the Site [or Application]. You agree that Ovation Hair will not be liable for any termination of your use of or access to the Site [or Application].
24. NO THIRD PARTY BENEFICIARIES
Only you and Ovation Hair are entitled to enforce these Terms. These Terms do not and are not intended to confer any rights or remedies upon any person other than you and Ovation Hair. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions relating to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms. You and Ovation Hair also agree that if Ovation Hair assigns, transfers, or sub-contracts any of our rights or obligations under these Terms to any third party in writing, such third party may enforce the Terms that are assigned, transferred, or sub-contracted.
If any provision of these Terms, or part thereof, is deemed invalid, unlawful, void, or for any reason unenforceable, then that provision, or part thereof, will be deemed severable from the rest of the Terms and will not affect the validity or enforceability of any remaining provisions or part thereof.
The terms of this section survive terminations of the Terms.
It is the express intent of the parties that these Terms and all related documents have been drawn up in English.
27. DISPUTES, BINDING AND CONFIDENTIAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
Confidential and Binding Arbitration. You and Ovation Hair agree to confidential and binding arbitration of all Disputes between the parties pursuant to the provisions in this section. ARBITRATION MEANS THAT YOU AND OVATION HAIR WAIVE OUR RESPECTIVE RIGHTS TO A JUDGE OR JURY IN A COURT PROCEEDING AND GROUNDS FOR APPEAL ARE LIMITED. You and Ovation Hair also agree that (i) these Terms memorialize a transaction in interstate commerce; (ii) the Federal Arbitration Act (9 U.S.C. §§1, et seq.) governs the interpretation and enforcement of this section; and (iii) this section will survive termination of these Terms. The arbitrator may award the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief warranted by a claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation, and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator will be final and enforceable by any court with jurisdiction over the parties.
Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court. Ovation Hair does not hereby waive any defense and expressly reserves its right to assert any defense available to it in any such action, whether jurisdictional or otherwise.
Dispute Notice. In the event of a Dispute, you or Ovation Hair must first send to the other party a notice of the Dispute that includes a written statement that sets forth the name, address, and contact information of the party giving notice, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Ovation Hair must be addressed and sent by certified mail to: DC Labs Inc. dba Ovation Hair, PO Box 130008, Carlsbad, California 92013, Attn: Accounting (the “DC Labs Notice”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Ovation Hair and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, either you or Ovation Hair may commence an arbitration proceeding pursuant to this section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND OVATION HAIR AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING, WITHOUT LIMITATION, FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR WILL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO THE ARBITRATION PROCEEDING.
Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be governed by the terms set forth in this section and the Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS) that are in effect at the time the arbitration is initiated (the “JAMS Procedures”), which are available at http://www.jamsadr.com or by calling 1-800-352-5267. The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only. If there is a conflict between the JAMS Procedures and the terms set forth in this section, the terms in this section will govern. The parties may, in arbitration, seek all remedies otherwise available to them pursuant to federal, state, or local laws. All Disputes will be resolved by a single neutral JAMS arbitrator, and both parties will have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this section. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, each of which is excluded from the definition of “Dispute” as stated above. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone will take place in a location reasonably accessible from your primary residence, or in San Diego, California, at your option.
- Initiation of Arbitration Proceeding. If either you or Ovation Hair decide to arbitrate a Dispute, the parties agree to the following procedure:
- Write a Demand for Arbitration. The Demand must include a description of the Dispute and the amount of damages sought to be recovered (the “Demand for Arbitration”). A sample demand for arbitration is available at http://jamsadr.com.
- Send three (3) copies of the Demand for Arbitration, plus the appropriate filing fee, to:
401 B Street
San Diego, CA 92101
- Send by certified mail one (1) copy of the Demand for Arbitration to the other party at the same address listed for the Dispute Notice, or as otherwise agreed to in advance by the parties.
- Hearing Format. In all hearings, the arbitrator will issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. The amount of any settlement offer made by Ovation Hair or you will not be disclosed to the arbitrator, if at all, until after the arbitrator determines the amount, if any, to which you or Ovation Hair is entitled. The discovery or exchange of non-privileged information relevant to the Dispute will be governed by the JAMS Optional Expedited Arbitration Procedures.
- Arbitration Fees. Ovation Hair will pay, or (if applicable), reimburse, you for all JAMS filing, administration, and arbitration fees for any arbitration commenced by you or Ovation Hair pursuant to the terms of this section.
- Opt-Out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section by sending a written letter by certified mail to DC Labs Inc. dba Ovation Hair at PO Box 130008, Carlsbad, California 92013 within thirty (30) days of your first visit to and use of the Site [or Application] that specifies your (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section. In the event you opt-out consistent with the procedure set forth above, all other terms and conditions in these Terms will continue to apply.
Ammendments to this Section. Notwithstanding any provision in this section to the contrary, you and Ovation Hair agree that if Ovation Hair makes any future amendments to the dispute resolution procedure and class action waiver provisions set forth in this section (other than a change to the parties’ addresses), Ovation Hair will post notice of such amendments on the Site [and Application] and you will have thirty (30) days from your first visit to, or use of, the Site [or Application] containing such amendments to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you agree you will arbitrate any Dispute between us in accordance with the language of this section as stated in this current section, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to such future amendments.
Severability. If any provision of this section is found to be unenforceable, that provision will be severed with the remainder of this section and these Terms remaining in full force and effect. The foregoing will not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire section will be null and void. The terms of this section will otherwise survive any termination of these Terms.
Exclusive Venue for Other Controversies
Ovation Hair and you agree that any controversy excluded from the dispute resolution procedure or class action waiver provisions in these Terms (other than an individual action filed in small claims court) will be filed only in the Superior Court of California, County of San Diego or the United States District Court for the Southern District of California, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
Time Period for Bringing Claims
You and Ovation Hair agree that any cause of action either may have with respect to the Site[, Application,] or Ovation Hair’s products [or services] must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. Many states’ laws set statutes of limitations that are longer than one (1) year. If you live in a state that has statutes of limitations that are longer than one (1) year, by agreeing to these Terms, you are agreeing to shorten the time you have to bring a claim. This means that if you wait longer than one (1) year to initiate an arbitration under this section, you will lose some or all rights you may have to any recovery, including the right to recover damages, in connection with a Dispute.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, your agreement to this provision shortens the time within which you may bring a Dispute.
28. MISCELLANEOUS TERMS
The section titles used in these Terms are purely for convenience and carry with them no legal or contractual effect.
Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between you and Ovation Hair, and you do not have any authority to create any obligation on Ovation Hair’s behalf. You may not assign or transfer any rights or obligations of these Terms, by operation of law or otherwise, without Ovation Hair’s written consent. Subject to the foregoing, these Terms will be binding on, inure to the benefit of, and be enforceable against you and Ovation Hair and their respective successors and assigns.
The terms of this section survive any termination of these Terms.
29. OTHER IMPORTANT TERMS
These Terms supersede any other terms and conditions previously posted or published by Ovation Hair and any other representations or statements made by us to you, whether oral, written, or otherwise. No delay by Ovation Hair in exercising any right or remedy under these Terms will operate as a waiver of that right or remedy or will affect our ability to subsequently exercise that right or remedy. Any waiver must be agreed by Ovation Hair in writing.