Project Gaia – U.S. Terms of Service
EFFECTIVE: April 4th, 2020
Welcome to Project Gaia’s U.S. website (the “Site
”), which is governed by these Terms of Service (this “Agreement
”). This Agreement is important and contains terms and conditions that affect your legal rights, so please read it carefully. If you reside or are located outside the United States, additional terms and conditions may be applicable to you that either supplement or replace certain provisions in this Agreement. Please visit our region or country-specific domains, including our https://www.helpyoursalon.shop/us/
(Italy) (all other European countries) domains, to see whether these additional terms and conditions apply to you. If you are located in the EU, you may not purchase from this Site and must visit the applicable domain for your location.
By accessing or using the Site provided by Project Gaia UG or our subsidiaries or affiliates (herein referred to as “Project Gaia
” or “our
”), pursuant to which we make available our nature cosmetics products and other products for purchase (the “Products
”) (collectively, with the Site, the “Services
”), you agree to be bound by the terms and conditions contained in this Agreement and all other terms incorporated herein by reference. Some of the Services may be subject to additional terms and conditions we specify from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into this Agreement by reference. This Agreement applies to all users of the Site.
We reserve the right, at our sole discretion, to change or modify portions of this Agreement at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. You may read a current, effective copy of this Agreement at any time by selecting the “Terms & Conditions” link on the Site. We will also notify you of any material changes either through a pop-up notice, e-mail or through other reasonable means. Your continued use of the Site after any such changes constitutes your acceptance of the new Agreement. You should periodically visit this page to review the current Agreement so you are aware of any revision to which you are bound. If you do not agree to abide by this or any future Agreement, do not use or access (or continue to use or access) the Site.
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
for information about how we collect, use, disclose and otherwise process information about you.
2.1 If you are below the age of consent under applicable law in the country in which you reside, then your parent or legal guardian must read and accept this Agreement in your name and on your behalf.
2.2 You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Site. We may, in our sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time.
2.3 We continually test new features, functionalities, services, user interfaces and Products that we are considering incorporating into or providing through our Site. We reserve the right to include or exclude you from these tests without notice.
2.4 You are solely responsible for ensuring that your use of the Services complies with all laws, rules and regulations applicable to you. If the applicable law in the country in which you reside requires that you must be older than 13 to receive certain Services, then the minimum age is the legally required one. If you are a minor, you may wish to consult your parents about what portions of the Services are appropriate for you. The right to access the Site is revoked where this Agreement or use of the Site is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
3.1 You may register for an account on the Site (an “Account
”). To use certain portions of the Site, you are not required to sign up for an Account. However, certain features of the Site, such as accessing your order history, require you to register for an Account. You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a username a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s Account or registration information for the Site without permission. You must notify us immediately of any change in your eligibility to use the Site, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account.
4. Use of the Site.
4.1 The Site contains material, including but not limited to software, text, graphics and images (collectively referred to as the “Content
”). We may own the Content, or portions of the Content may be made available to us through arrangements that we have with third parties. We do not guarantee that any Content you access on or through the Site is or will continue to be accurate. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content, including but not limited to use of framing or mirrors, except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Site shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
4.2 The trademarks, service marks, and logos of Project Gaia (the “Project Gaia Trademarks
”) used and displayed in connection with the Services are registered and unregistered trademarks or service marks of Project Gaia. Other company, product, and service names located on the Site or otherwise used in connection with the Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the Project Gaia Trademarks, the “Trademarks”). Nothing on the Site, in the Services or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site or otherwise used in connection with the Services without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Project Gaia Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any Project Gaia Trademark shall inure to our benefit.
4.3 You agree not to: (a) take any action that imposes an unreasonable load on the Site’s infrastructure; (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Site; (d) delete or alter any material we or any other person or entity posts on the Site; or (e) otherwise take any action in violation of our guidelines and policies.
5. Third Party Sites.
5.1 The Site may contain links to third party websites, services or other resources on the Internet, including but not limited to our sponsors and Facebook, and other websites, services or resources may contain links to the Site (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any External Sites.
6. User Content.
6.1 With respect to any Submissions (as defined below), and any content or other materials you provide to or upload through the Site or share with other Site users or recipients (collectively, “User Content
”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that you know is false, misleading, untruthful or inaccurate, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion.
6.2 By uploading any User Content you hereby grant and will grant Project Gaia and its affiliated companies, successors and assigns a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Site or the promotion, advertising or marketing of the Services, in any form, medium or technology now known or later developed, and including after your termination of your Account or the Services. For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
6.3 Except where prohibited by applicable law, by submitting User Content through the Site, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of the User Content or any Submissions, photograph(s), footage, illustrations, statements or other work contained in the User Content. You are also agreeing to appoint Project Gaia as your irrevocable attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, own and protect the rights in any derivative works created from your User Content, and have the User Content removed from any other website or forum.
6.4 You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, “Submissions
”) that you provide to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
6.5 You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Project Gaia, our users and the public. You understand that the technical processing and transmission of the Site, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
7. IP Infringement.
7.1 We respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below. We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA
”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Project Gaia’s Copyright Agent at firstname.lastname@example.org (Subject line: “Takedown Request
”). You may also contact us by mail at: Project Gaia UG, ATTN: Copyright Takedown Request, Friedrichtstraße 79, 10117 Berlin, Germany.
7.2 To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
- 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 copyright or intellectual property owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7.3 If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Los Angeles, California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
7.4 If a counter-notice is received by the Copyright Agent, we will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it within ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
7.5 In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Site and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
8. Payments; Ordering & Availability.
8.1 Initially, you can place Products in the virtual cart under no payment obligation. After clicking on “Checkout”, you will have the opportunity to enter your delivery and billing information and select your preferred payment method. Before submitting your binding order, you can correct the information you have entered at any time by using the correction aids provided during the order process. By clicking on “Place order”, you submit a binding order for the Products in your cart. You should receive an email confirming receipt of your order shortly after you have submitted your order.
8.2 We accept payments for Products by the following payment methods: the credit cards identified on the applicable payment page, Amazon Pay, PayPal, and Klarna direct banking. You agree to provide accurate and up-to-date payment information at the time you order any Product.
8.3 We have contracted with a third-party payment processor to facilitate credit card purchases made on the Site. If you make a purchase by credit card through the Site, you will provide your payment details and any additional information required to complete your order directly to our third-party payment processor. You should be aware that online payment transactions are subject to validation checks by our payment processor and your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our payment processor uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our payment processor may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
8.4 If you make a payment by Amazon Pay, you will be redirected to the website of the online provider Amazon before completing the order in our web shop. There you can select the delivery address and payment method stored with Amazon and confirm the payment order to Amazon. You can then complete the order process as normal in our web shop. Payments made by Amazon Pay will be subject to Amazon’s applicable terms and conditions.
8.5 If you make a payment by PayPal, after the ordering process, you will be redirected to the website of the online payment service provider PayPal. There you can issue a payment order to PayPal. Payments made by PayPal will be subject to PayPal’s applicable terms and conditions.
8.6 If you make a payment by Klarna direct banking, after the ordering process, you will be redirected to the website of the online payment service provider Klarna Bank AB. There you can issue a payment order to Klarna. Payments made by Klarna will be subject to Klarna’s applicable terms and conditions.
8.7 You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price will be collectible by us. We strive to provide accurate pricing information regarding the Products available on the Site. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any orders placed for a Product whose price was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email. The Site may contain information regarding the availability of Products. In rare cases, a Product may be in stock when you place the order, and sold out by the time we attempt to process the order. Should this happen, we will notify you by email and cancel the item from your order. We also may offer some Products for sale before they have been manufactured or arrive at our warehouse. When you preorder these Products, we will ship them out once they are available. In rare cases, these items may not become available for shipping. Should this happen, we will notify you by email and cancel the item from your order.
8.8 Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) will be added to the price payable. You agree to pay for taxes, shipping or carriage of the Products as such costs are specified by us when you submit your order.
8.9 All orders of Products must be for your personal use only. By purchasing Products, you hereby agree not to resell or distribute such Products for any commercial purposes. We reserve the right to assert claims for damages arising from the unauthorized resale of Products.
8.10 All orders are subject to our acceptance or rejection based on Product availability, noncompliance with this Agreement or any other reason as determined in our sole discretion. For instance, if we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place. We also reserve the right, in our sole discretion, to take steps to verify your identity to process your order. We will either not charge you or refund the charges for orders that we cancel or do not process.
8.11 We attempt to provide accurate descriptions of Products. We do not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free. If a Product is not as described, your sole remedy is to return the item, unless otherwise specified in writing by us. We occasionally run promotions or provide limited-time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions.
9.1 After placing an order, please allow one to three business days for your order to be processed by our warehouse. When your order has been shipped, you should receive a shipping confirmation email which will specify an estimated delivery date. If you have not received a shipping confirmation within 10 days of your purchase, please contact us. For more information about delivery costs and times please visit https://www.helpyoursalon/us/shipping-costs-delivery/, which is incorporated herein by reference.
9.2 Your order will be delivered to the delivery address that you specify when placing your order. If we are unable to deliver to your delivery address, for example if your delivery address is geographically remote, we will notify you before we accept your order. We reserve the right not to deliver to any country that is prohibited by applicable export laws. Products comprised within the same order cannot be delivered to different addresses.
9.3 The Product(s) ordered will be at your risk from the time you receive the Product(s). Ownership of the Product(s) ordered will also pass to you upon your receipt of the Product(s), provided full payment of all sums due in respect of the Product(s), including any delivery charges, has been received.
9.4 If any Product you order is damaged or faulty when delivered to you or has developed a fault, you may have one or more legal remedies available to you, depending on when you make us aware of the problem, in accordance with applicable law. If you believe a Product was delivered damaged or faulty or has developed a fault, you should inform us as soon as possible, via a contact form available at https://www.helpyoursalon.shop/us/contact/. Nothing in this section affects your legal rights.
10. Cancellations and Returns.
10.1 We accept Products for returns if you submit a return request within 14 days from the date of receiving the order, in accordance with the procedure and subject to the further conditions specified in https://www.helpyoursalon.shop/us/cancellation-policy/, which is incorporated herein by reference.
11. Limitation of Liability and Disclaimer of Warranties.
11.1 YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
11.2 Project Gaia MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
11.3 YOU EXPRESSLY UNDERSTAND AND AGREE THAT Project Gaia WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Project Gaia HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL Project Gaia’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID Project Gaia IN THE LAST SIX (6) MONTHS, OR, IF GREATER, FIFTY DOLLARS ($50).
11.4 SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
11.5 IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION 11 IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
12.1 To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Project Gaia and its affiliates and their officers, employees, directors and agents from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any User Content or Feedback you provide, or your access to, use or misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to the Project Gaia Legal Department at Project Gaia UG, ATTN: Legal, Friedrichstrasse 79, 10117 Berlin, Germany, and to send a copy of the same to email@example.com. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
12.2 If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
12.3 IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS 12.1 AND 12.2 ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
13. ARBITRATION CLAUSE AND CLASS ACTION WAIVER—IMPORTANT—PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
13.1 Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Project Gaia, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Project Gaia are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
13.2 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND Project Gaia AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Project Gaia AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
13.3 Pre-Arbitration Dispute Resolution.
Project Gaia is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Project Gaia should be sent to Friedrichstrasse 79, 10117 Berlin, Germany (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Project Gaia and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Project Gaia may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Project Gaia or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Project Gaia is entitled.
13.4 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Project Gaia and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Project Gaia agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
13.5 Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Project Gaia will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Project Gaia will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Project Gaia will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection 13.2 titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection 13.2 above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Agreement will continue to apply.
13.8 Future Changes to Arbitration Agreement
Notwithstanding any provision in this Agreement to the contrary, Project Gaia agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Project Gaia written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Agreement (or accepted any subsequent changes to these Agreement).
14.1 We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Site or the Content at any time and for any reason (including if we believe that you have engaged in any suspected fraudulent or abusive activity, or violated or acted inconsistently with the letter or spirit of this Agreement) without prior notice or liability, including the right to reject any order you place for the purchase of Products, which may result in the forfeiture and destruction of all information associated with your Account. We reserve the right to change, suspend, or discontinue all or any part of the Services or the Content at any time without prior notice or liability. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity, limitations of liability, class action waivers and arbitration.
15. User Must Comply with Applicable Laws.
15.1 You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, provincial, national and international laws and regulations.
15.2 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
16. Transfer and Processing of Personal Data.
16.1 In order for us to provide the Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
17. U.S. Government Restricted Rights.
17.1 The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Services or Content by the Government constitutes acknowledgement of our proprietary rights in the Services and Content.
18. Notice for California Users.
18.1 Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Project Gaia UG, Friedrichstraße 79, 10117 Berlin, Germany.
19.1 This Agreement is governed by the internal substantive laws of the State of California, without respect to its conflict of laws provisions. Any dispute between you and Project Gaia that is not subject to arbitration or cannot be heard in small claims court will be resolved in state and federal courts sitting in the City of Los Angeles, California. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. Any information you submit to or provide through the Site might be publicly accessible, and you should protect important and private information. We are not liable for protection of privacy of email or other information transferred through the Internet or any other network that you may use.
19.2 Except as expressly agreed by us and you, this Agreement constitutes the entire agreement between us and you with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between us and you with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement is personal to you, and is not assignable, transferable or sublicensable by you except with our prior written consent. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.