Terms of Service
Terms of Service
Last Updated: November 16, 2022
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND PREEMADONNA THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 20 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1. Agreement to Terms. By using our Services, you accept and agree to be bound by these Terms. If you do not agree to be bound by these Terms, do not use the Services.
3. Changes to these Terms or the Services. We may update the Terms from time to time in our sole discretion. If we do, we will let you know by posting the updated Terms on the Sites, to the Apps and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you do not agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. Who May Use the Services? You may use the Services only if you are 13 years of age or older, or such other minimum age at which you can provide consent to data processing under the laws of your territory, capable of forming a binding contract with Preemadonna, and not otherwise barred from using the Services under applicable law. If you are over 13 years of age but under the age of majority in your respective jurisdiction, you hereby represent and warrant that your parent or legal guardian has read these Terms, and accepts them on your behalf. Parents and legal guardians are responsible for the acts of their minor children when using the Services, whether or not the parent or guardian has authorized such acts. For certain features of the Services you will need to register and create an account. It is important that you provide us with accurate, complete and current account information and keep this information up to date. If you do not, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You are responsible for all activities that occur under your account.
5. Sale of Products.
(a) Pilot Program Pre-Ordering. Preemadonna accepts pre-orders for the Nailbot from participants of the Preemadonna pilot program. Pre-orders are considered Orders for purposes of these Terms. As per our pre-order shipping pledge, if you change your mind after placing a pre-order, you can cancel your Order at any time before you receive your Nailbot Order Confirmation for a full refund. Once the product has been shipped, your Order is complete and you will not be able to cancel your Order and/or receive a refund for your purchase at any time.
(b) Ordering. Preemadonna accepts orders (“Orders”) for the Nailbot, Services and any other products, including gift cards and accessories (e.g., cartridges, polishes and nail care consumables) that we may offer through the Sites. By placing an order on a Site, you are offering to purchase the relevant product(s) on and subject to these Terms. No such order will be binding on us unless and until we accept your order and send you a confirmation by email (“Order Confirmation”), which will confirm the products purchased and price, and will specify a shipment date (“Order Confirmation Shipment Date”). You understand that availability of products cannot be guaranteed and that the products, associated prices and any other information related to such products and provided by Preemadonna via the Services are subject to corrections and changes without notice. Preemadonna reserves the right to revoke any stated offer and correct any errors, inaccuracies or omissions.
(c) Shipping and Delivery. For delivery of the Nailbot and any other goods ordered, we will ship the products to the address as indicated by you during the checkout process. All gift cards and software/Apps will be either delivered electronically to the email address as indicated by you during the checkout process or made available to you for download. Unless otherwise agreed in writing, we will pack the products in accordance with Preemadonna’s standard practices. Unless you provide us with specific instructions, we will select the carrier. Title to the products and risk of loss will pass to you upon our delivery of the products to the carrier. You acknowledge that all scheduled shipment dates, including the Order Confirmation Shipment Date, are estimates only. We will make commercially reasonable efforts to meet the scheduled shipment dates, but in no event will we be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery, nor will the carrier be deemed an agent of Preemadonna. If you receive a damaged or incomplete shipment of products, please contact us at firstname.lastname@example.org. We will have the right to delay or suspend shipment of the products if you fail to make any payment as provided in these Terms.
(d) Returns. All sales are final and we do not allow returns of products. However, if you are unhappy with any product, please contact us at email@example.com.
(e) Pricing and Payment. We reserve the right to change the prices and available products at any time. Quantities of some products may be limited and stock cannot always be guaranteed. The prices for the products will be as specified on the Sites on the date you place your order and in an Order Confirmation. When you place an order with Preemadonna (a “Transaction”), you expressly authorize us (or our third-party payment processor, Shopify) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment, and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms or on the Sites. All fees and applicable taxes, if any, are payable in United States dollars.
6. Subscriptions. In order to access certain content and features available via the Services, you may be required to purchase a subscription for membership (“Subscription”). The applicable Subscription plan options and fees for the Services will be as specified on the Sites.
(a) Subscription Payments. When you purchase a Subscription, you will be charged the monthly Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month thereafter, at the then-current Subscription Fee. Unless otherwise indicated, you will be required to provide a credit card or other payment accepted by Preemadonna during the checkout process. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE PREEMADONNA TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. When you purchase a Subscription, we (or our third-party payment processor, Shopify) will automatically charge you each month on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Preemadonna. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
(b) Cancelling Subscriptions. YOUR INITIAL SUBSCRIPTION PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we will refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time prior to the start of the next Subscription period, in which case your Subscription will terminate at the end of the month. YOU UNDERSTAND THAT YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to firstname.lastname@example.org. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
7. SMS Policy.
(a) By signing up for one or more Preemadonna SMS or text messaging programs, you expressly consent to receive marketing or non-marketing (for authentication, informational notifications and reminders) SMS/text messages, as applicable, from Preemadonna and/or our text message service providers, at the telephone number(s) that you provide to Preemadonna (the “SMS Service”). Such consent is not a condition of any purchase.
(b) When you opt-in to the SMS Service, we will send you an SMS message to confirm your sign up. You can cancel the SMS Service at any time. Just text the word STOP in response to the message you would like to unsubscribe from. After you send this message, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time, and we will start sending SMS messages to you again. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword command and agree that Preemadonna and its service providers will have no liability for failing to honor such requests.
(c) Content is not available on all carriers and carrier participation could change. We can deliver messages to the following mobile phone carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile.
(d) If you are experiencing issues with our messaging program, you can get help directly at email@example.com.
(e) Neither Preemadonna nor its service providers or carriers shall be liable for delayed or undelivered messages.
(f) As always, message and data rates may apply for any messages sent to you from us and to us from you. You will receive a variable number of messages per month based on the application features you have enabled, and we may alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. If you have any questions about your text plan or data plan, please contact your wireless provider.
8. Your Content.
(a) Posting Content. Our Services may allow you to store, share, post or upload content such as text (in posts or communications with others), files, documents, artwork, illustrations, designs, graphics, images (including images of your likeness, avatar or character), music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content”. Preemadonna does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content. If you contribute or submit User Content to a Preemadonna community or forum, you acknowledge that such User Content is not confidential and agree that we and any other third party users are free to use it without any restriction or compensation to you.
(b) Permissions to Your User Content. By making any User Content available through the Services you hereby grant to Preemadonna a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, and publicly display your User Content in connection with operating and providing the Services.
(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Preemadonna on or through the Services will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(d) Removal of User Content. If you would like to remove your User Content, please contact us at firstname.lastname@example.org. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
9. Participation in Pilot Programs. By agreeing to participate in the Nailbot pilot program and using the Nailbot and Services under the pilot program, you acknowledge and agree that: (a) the Nailbot and Services are still being developed and you have purchased the beta version of the Nailbot and Services; (b) the Nailbot and Services may not operate properly, be in final form or be fully functional; (c) the Nailbot and Services may contain errors, design flaws or other problems; (d) the information obtained using the Nailbot and Services may not be accurate; (e) use of the Nailbot and Services may result in unexpected results, loss of data or communications, or other unpredictable damage or loss, and it is your responsibility to back up and restore any data that you store in or transmit through the Nailbot and Services; and (f) Preemadonna has the right unilaterally to abandon development of the Nailbot and Services, at any time and without any obligation or liability to you. You acknowledge and agree that you should not rely on the beta version of the Nailbot and Services for any reason. The Nailbot and Services provided under the pilot program are provided “as-is” and you acknowledge sole responsibility for and assume all risk arising from, your use of the Nailbot and Services. For clarity, any Order labeled "Pre-order" on the Sites, or ordered or pledged through Preemadonna's Nailbot campaigns on Indiegogo, Kickstarter or Republic will be deemed part of the Nailbot pilot program.
10. Preemadonna’s Intellectual Property Rights.
(a) Preemadonna’s Intellectual Property. Subject to the limited rights expressly granted hereunder, Preemadonna and its licensors solely own all right, title and interest in and to the Sites, Nailbot, Apps and Services, including all associated intellectual property rights. We may make available through the Services content that is subject to intellectual property rights. Unless otherwise indicated, all content, information, and other materials provided by Preemadonna available through the Services including, without limitation, visual interfaces, artwork, illustrations, designs, graphics, text, images, sound files, software, computer code (in source code and object code form) and the selection and arrangement thereof, and Preemadonna’s trademarks and logos, including Preemadonna® and Nailbot® (collectively, the “Preemadonna IP”) are the exclusive property of Preemadonna, its affiliates or third-party licensors. Further, as between Preemadonna and you, Preemadonna will solely own all right, title and interest (including all intellectual property rights) in and to any images and videos that are collected and generated by the Nailbot (“Nailbot Data”), including photos and videos of your nails and manicure taken by the Nailbot, when you interact with the Nailbot and avail yourself of the Services. You convey, transfer and assign and agree to convey, transfer and assign all of your right, title and interest (including all intellectual property rights) that you may have in and to any Nailbot Data to Preemadonna.
(b) Reservation of Rights. We reserve all right, title and interest not expressly granted in and to the Sites, Nailbot, Services, and Preemadonna IP, including all associated proprietary intellectual property rights and no rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise). You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
(c) Nailbot Software and Apps License. If you comply with these Terms, Preemadonna hereby grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to (i) access and use the Nailbot software and firmware (“Software”) pre-installed on the Nailbot, (ii) download and install the Nailbot Software and Apps on your personal computers, mobile handsets, tablets, and/or other devices and to run the Software and Apps, and (iii) use any accompanying documentation provided by Preemadonna, solely in connection with your use of the Nailbot and for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Software and Apps; (ii) distribute, transfer, sublicense, lease, lend or rent the Software and Apps to any third party; (iii) reverse engineer, decompile, disassemble, decode or otherwise attempt to derive or gain improper access to the Software and Apps (unless applicable law permits, despite this limitation); or (iv) make the functionality of the Software and Apps available to multiple users through any means.
(d) Additional Information: Apple App Store. This Section 10(d) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. 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 must also comply with any applicable third-party terms of service when using the App.
(e) Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
11. General Prohibitions and Preemadonna’s Enforcement Rights. You agree not to do any of the following:
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Services or any individual element within the Services, Preemadonna’s name, any Preemadonna trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Preemadonna’s express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Preemadonna’s computer systems, or the technical delivery systems of Preemadonna’s providers;
(d) Attempt to probe, scan or test the vulnerability of any Preemadonna system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Preemadonna or any of Preemadonna’s providers or any other third party (including another user) to protect the Services;
(f) Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Preemadonna or other generally available third-party web browsers;
(g) Use in any way, or use any means to gain access to, the Services for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services;
(h) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(i) Use any meta tags or other hidden text or metadata utilizing a Preemadonna trademark, logo URL or product name without Preemadonna’s express written consent;
(j) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(k) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
(l) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
(m) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(n) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(o) Impersonate or misrepresent your affiliation with any person or entity;
(p) Violate any applicable law or regulation; or
(q) Encourage or enable any other individual to do any of the foregoing.
Preemadonna is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
12. Product Safety & Use. Preemadonna includes product safety and operating instructions on and within product packaging and/or the accompanying digital instructions. It is your responsibility to read, watch and/or understand the instructions on proper use of our products and Services. These instruction guides are subject to change and are also available at our help desk or here. You acknowledge and agree that your use (and any other person’s use) of the products purchased by you is done at your sole risk and you assume all liability in connection with such use. You are solely responsible for the appropriate care and maintenance of any product and agree to use such product in accordance with all operating and maintenance instructions and recommendations provided by Preemadonna, including any additional operating and maintenance instructions specified from time to time.
13. DMCA/Copyright Policy. Preemadonna respects copyright law and expects its users to do the same. It is Preemadonna’s policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Preemadonna will respond expeditiously to claims of copyright infringement committed using the Sites that are reported to Preemadonna’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Sites or Services by completing the following DMCA Notice of Alleged Infringement and delivering it to Preemadonna’s Designated Copyright Agent. Upon receipt of the Notice as described below, Preemadonna will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Sites.
DMCA Notice of Alleged Infringement (“Notice”).
Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver DMCA Notices, with all items completed, to Preemadonna’s Designated Copyright Agent:
14. Third Party Websites, Resources and Services.
(a) Third Party Websites and Resources. The Services (including the App) may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products, or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
(b) Third-Party Services. Certain features and functionalities within the Services may allow you to interface or interact with, access and/or use compatible third-party services and software (collectively, “Third-Party Services”) through the Nailbot and App. Your use of these Third-Party Services are subject to (and you agree to be bound by) the applicable third-party terms, including for the following Third-Party Services: (i) Open CV, (ii) Little CMS 2, and (iii) JoyPixels and any other Third-Party Services for use with the Services. The Third-Party Services are provided “as-is” and you acknowledge sole responsibility for and assume all liability arising from, your use of any Third-Party Services.
15. Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at email@example.com. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 6(b) (only for payments due and owing to Preemadonna prior to the termination), 8(b), 8(c), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21.
16. Warranty Disclaimers. EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND IN THE LIMITED WARRANTY POLICY, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHERMORE, WE EXPLICITLY DISCLAIM THAT THE NAILBOT WILL BE IN STOCK, SAFE, DEFECT-FREE, CONFORM WITH WRITTEN OR ORAL SPECIFICATIONS, GUARANTEES, REPRESENTATIONS, WARRANTIES OR PROMISES, THE USE OF THE NAILBOT WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED OR THAT SUCH USE WILL NOT EXPOSE YOU TO FUMES FROM THE NAIL ART INK AND POLISH, CAUSE AN ALLERGIC REACTION OR CAUSE ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE NAILBOT AND THE SERVICES IS DONE AT YOUR SOLE RISK AND YOU ASSUME ALL LIABILITY IN CONNECTION WITH SUCH USE.
17. Indemnity. You will indemnify and hold Preemadonna and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
18. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PREEMADONNA NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE NAILBOT AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PREEMADONNA OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PREEMADONNA’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE NAILBOT AND SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO PREEMADONNA FOR THE PURCHASE OF THE NAILBOT AND USE OF THE SERVICES.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PREEMADONNA AND YOU.
19. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 20 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Preemadonna are not required to arbitrate will be the state and federal courts located in Santa Clara County, California and you and Preemadonna each waive any objection to jurisdiction and venue in such courts.
20. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Preemadonna agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Preemadonna are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 20(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we will not seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and will not seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 20(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND PREEMADONNA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 20(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
21. General Terms.
(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Preemadonna and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Preemadonna and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Preemadonna’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. Preemadonna may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. Any notices or other communications provided by Preemadonna under these Terms will be given: (i) via email; or (ii) by posting to the Sites. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Preemadonna’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Preemadonna. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
22. Contact Information. If you have any questions about these Terms or the Services, please contact Preemadonna at firstname.lastname@example.org, 650-323-2268 and/or