THESE TERMS AND CONDITIONS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE READ THIS DOCUMENT CAREFULLY.
1. General.
1.1 This website located at www.maskskincare.com (the “Website”) is controlled, operated and administered by MASK SKIN CARE LLC doing business as MASK SKINCARE. Your access to and use of the Website is subject to the following terms of use (these “Terms of Use”) and all applicable statutes, orders, regulations, rules, and other laws. By accessing and browsing the Website, You accept and agree to be bound by these Terms of Use, which are conditions of permission to access the Website. If You do not agree to these Terms of Use, You may not have access to the Website.
1.2 MASK SKINCARE produces a line of personal care products (hereinafter collectively referred to as the “Products”, which term shall include any modifications thereof) more particularly described from time to time on the Website, and You would like to resell the Products and MASK SKINCARE is willing to allow You (“You” or “Your”) to do so subject to these Terms of Use.
1.3 By agreeing to these Terms of Use, You hereby represent and warrant that You are duly authorized and empowered to perform these Terms of Use and that such action does not conflict with or violate any provision of law, regulation, policy, contract, deed of trust or other instrument to which You are a party or by which You are bound and that these Terms of Use constitutes a valid and binding obligation against You enforceable in accordance with its terms.
1.4 You may not use our Products for any illegal or unauthorized purpose nor may You, in the use of the Website, violate any laws in Your jurisdiction (including but not limited to copyright laws). You must not transmit any worms or viruses or any code of a destructive nature. A breach or violation of any of the Terms of Use may result in an immediate termination of Your use of the Website.
1.5 The form and nature of the services, content and all information posted on the Website is subject to change without notice. These Terms of Use may be changed, altered or modified at any time without prior notice. MASK SKINCARE will make such changes by posting them on the Terms of Use page of the Website. You should check this page periodically for such changes. You can determine when these Terms of Use were last revised by referring to the “LAST UPDATED” legend at the top of these Terms of Use. Your continued access of the Website after such changes conclusively demonstrates Your acceptance of those changes.
1.6 We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Website, with or without notice. You agree that we shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Website, in whole or in part, or of any service, content, feature or Product offered through the Website.
2. Your Account
2.1 You will be required to register for an account with MASK SKINCARE in order to access or use parts of the Website. Your account gives You access to the Website and functionality that We may establish and maintain from time to time and in Our sole discretion. You must register through the Website by completing the applicable registration form to create Your account with a unique username and password.
2.2 By creating an account, You agree:
(a) that You are able to and have the appropriate authority and authorization to create a binding agreement with MASK SKINCARE;
(b) to provide true, accurate, current and complete information about Yourself when we request it;
(c) to maintain and promptly update this information to keep it true, accurate, current and complete to the extent the Website permit such updates; and
(d) to use limited-access portions of the Website only using access credentials that we have issued to You and not to violate these Terms of Use.
2.3 You must notify MASK SKINCARE immediately of any unauthorized use of Your credentials or any other breach of security. Even if You notify us, You will be responsible for any activities that occur using Your access credentials, including any charges resulting from the use of Your account. MASK SKINCARE will not be liable for any losses or damages caused by any unauthorized use of Your account, financial or otherwise.
3. Orders.
3.1 While these Terms of Use remain in effect, You may from time-to-time order from MASK SKINCARE units of the Products at such prices and in such quantities using the Website. The prices of the Products shall be as shown on the Website, provided however, the prices of the Products as shown on the Website may change at any time and from time to time in the sole discretion of MASK SKINCARE. You shall place all orders for Products through the Website.
3.2 In order to protect the integrity of MASK SKINCARE’s business and that of its carefully selected retailers, MASK SKINCARE shall determine from time-to-time certain minimum orders on new and existing accounts, yearly minimum orders required of its retailers to remain an authorized retailer of the Products, as well as certain promotional considerations offered to performing retailers intended to enhance their ability to sell the Products (for example, free shipping on orders meeting certain sales minimums). These order minimums, yearly minimums and promotional considerations will be communicated to You at any time after You set up Your account and may be changed from time to time at the discretion of MASK SKINCARE. Failure to meet minimum order requirements or yearly minimum order amounts may subject Your account with MASK SKINCARE to termination.
3.3 MASK SKINCARE shall not be obligated to accept any orders from You that it is not able to fill due to a shortage or lack of inventory, or if You have breached any of the terms and conditions of these Terms of Use.
4. Delivery; Payment; Risk of Loss.
4.1 MASK SKINCARE will, at Your expense, ship the units of Product ordered as soon as practicable to You at the address for shipments provided to MASK SKINCARE through the Website; provided, however, that, in the event that MASK SKINCARE is unable to ship the units ordered within seven (7) business days of MASK SKINCARE’s receipt of Your order through the Website, MASK SKINCARE shall so inform You prior to the end of said seven (7) business day period and You shall have the option of canceling such order.
4.2 Unless otherwise agreed to in advance by MASK SKINCARE, You will pay for the units of Product ordered in full prior to shipment by such payment methods as are accepted from time to time on the Website. Cash on delivery (C.O.D.) orders are not permitted.
4.3 If requested by MASK SKINCARE, You will return to MASK SKINCARE, at MASK SKINCARE's expense, any damaged or defective units of Product or packaging, and, if requested, You will furnish MASK SKINCARE with an affidavit by one of Your executive officers as to any units of Product which are not delivered. MASK SKINCARE will promptly replace at its expense (i) any damaged or defective units of Product, or (ii) any damaged or defective packaging for any units of Product which are not damaged or defective. In lieu of returning damaged or defective units of Product or packaging to MASK SKINCARE, MASK SKINCARE may request, and You shall provide, photos as a means of documenting any damage that may have been caused by a common carrier and such other reasonable evidence as MASK SKINCARE may reasonable request.
4.4 Delivery will be F.O.B. MASK SKINCARE’s plant in NEW YORK, United States of America. Title and risk of loss to the Products purchased under these Terms of Use passes to You upon delivery of the Products to the carrier.
5. Sales by You; Diversion and Counterfeit Goods; Intellectual Property; Minimum Advertised Price (MAP)
5.1 MASK SKINCARE'S vigorously protects the quality of the Products and its intellectual property rights from unauthorized sales and uses. By entering into these Terms of Use and receiving certain limited rights to sell the Products and to use certain of MASK SKINCARE’s Trademarks (defined immediately below), You acknowledge that unauthorized activities by You or others with regard to the Products or MASK SKINCARE’s Trademarks, including without limitation unauthorized sales and uses, may impact the quality of the Products and/or MASK SKINCARE’s intellectual property rights. Accordingly, You agree to confine Your activities with regard to the Products and MASK SKINCARE’s Trademarks solely to those activities that are authorized by MASK SKINCARE.
5.2 MASK SKINCARE is the owner of a number of trademarks including but not limited to the marks that appear on the Website (“MASK SKINCARE’s Trademarks”). MASK SKINCARE has expended and continues to expend considerable resources to develop, market and promote the Products under MASK SKINCARE’s Trademarks. As a result, consumers and the commercial trade have come to recognize and rely upon MASK SKINCARE’s Trademarks as brands exclusively belonging to MASK SKINCARE and MASK SKINCARE has built substantial goodwill in MASK SKINCARE’s Trademarks.
5.3 MASK SKINCARE hereby grants YOU the non-exclusive right to sell the Products only in those locations specifically consented to by MASK SKINCARE after you set up your account (hereinafter referred to as the “Authorized Sale Location(s)”). YOU shall not sell the Products elsewhere and shall not sell the Products or otherwise make the Products available to anyone else to sell or otherwise exploit elsewhere (including, without limitation, on AMAZON®, EBAY®, or other online retail sites).
5.4 MASK SKINCARE only sells the Products directly to its own customers and through authorized retailers. Goods marketed as MASK SKINCARE’s Products by an unauthorized dealer have either been diverted without authorization from MASK SKINCARE or are counterfeit. These unauthorized dealers may operate online (for example, on AMAZON® or EBAY®) or from a brick and mortar location. Counterfeit and diverted goods may be, among other things, damaged, expired, tampered-with, made with unknown or unsafe ingredients and generally unsafe for use. MASK SKINCARE actively utilizes procedures to detect and stop counterfeit and diverted goods that affect MASK SKINCARE’s Trademarks. If YOU become aware of any such attempts by others to counterfeit or divert MASK SKINCARE’s Products, YOU shall notify MASK SKINCARE by sending an email to info@maskskincare.com
5.5 MASK SKINCARE grants You a limited, non-exclusive, non-transferable, revocable, royalty free license to use MASK SKINCARE’s Trademarks on an “as is” basis only as expressly directed and authorized by MASK SKINCARE and only during the term of these Terms of Use. It should be understood that MASK SKINCARE’s direction and authorization concerning MASK SKINCARE’s Trademarks, including without limitation Products, labeling, packaging and advertisements incorporating MASK SKINCARE’s Trademarks, is subject to change at any time at MASK SKINCARE’s sole discretion. Upon termination or expiration of these Terms of Use, the license granted pursuant to this Section 5.5 shall immediately cease and terminate and You will immediately discontinue the use of MASK SKINCARE’s Trademarks, and thereafter will not use, either directly or indirectly, in connection with its business or in any other manner whatsoever, such trademarks, or any other words, names, titles or expressions so nearly resembling the same as would be likely to lead to confusion or uncertainty or likely to deceive the public.
5.6 You agree that You will not sell Products past the date of expiration, as determined by MASK SKINCARE, and that You will not use, alter or modify any labeling, packaging or advertisements in any manner that is not expressly authorized by the MASK SKINCARE. In no event shall You sell Products that have been in Your possession for more than eighteen (18) months following receipt thereof from MASK SKINCARE. Should You have any questions about whether any such activity concerning the Products or MASK SKINCARE’s Trademarks is authorized or unauthorized, You should contact MASK SKINCARE before undertaking any such activity.
5.7 You shall not participate in any activity, scheme or artifice to counterfeit or divert MASK SKINCARE’s Products or to infringe or misuse MASK SKINCARE’s Trademarks. Further, should You become aware of any such activity, scheme or artifice, You shall report the same to MASK SKINCARE by sending an email to info@maskskincare.com describing the facts and circumstances known to You in sufficient detail to assist MASK SKINCARE in pursuing cessation of the same.
5.8 You will comply with all applicable laws, rules and regulations in selling the Products and in otherwise dealing with the Products.
5.9 You will deliver the Products to the customer in their original container or containers, including, without limitation, any outer boxes containing the Products, and shall not repackage any of the Products for resale.
5.10 You acknowledge that MASK SKINCARE, because of the nature of the Products and/or MASK SKINCAREs Trademarks, would suffer irreparable harm in the event of a material breach of any of the provisions of Section 5 of these Terms of Use in that monetary damages would be inadequate to compensate MASK SKINCARE for such a breach, and that in the event of any material breach or threatened material breach by the You of any such provisions, MASK SKINCARE shall be entitled, in addition to such other legal or equitable remedies which might be available, to injunctive relief in any court of competent jurisdiction against the threatened material breach or continuation of any such material breach without showing or proving any actual damages sustained by MASK SKINCARE.
5.11 All Products have a published Minimum Advertised Price (MAP) which is no less than twenty five percent (25%) off of the advertised retail price on the Website.
5.12 All Product may only be ADVERTISED at or above this MAP price. If You advertise a Product for sale below the MAP, at a "call for price", "click for lower price", “enter your e-mail for lower price”, or any similar offering, or represent this visually with a line through the MAP, You will be in violation of these Terms of Use.
5.13 The advertising of any coupon or additional discount offerings (applied to the immediate or future sale) is considered to be part of the advertisement of the Product. If the advertised coupon or discount offering brings the value of the Product below the MAP, this will be deemed a violation of these Terms of Use.
5.14 If You provide Products to resellers, then You are responsible for ensuring that the resellers’ pricing coincides with the MAP policy. If You continue to provide Products to resellers known to disregard the MAP policy, then You will be considered in violation of these Terms of Use.
5.15 In addition to any other right We may have under these Terms of Use, failure to abide by the MAP policy will result in Your immediate revocation as an authorized wholesaler. We are not required to provide prior notice or to issue warnings before taking action for breach of these Terms of Use.
6. MASK SKINCARE's Warranty; Consequential Damages Excluded; Limitation of Liability
6.1 MASK SKINCARE warrants to You that: (i) the units of the Products purchased under these Terms of Use will be properly, adequately and safely packaged and labeled, and (ii) the Products function and will function in accordance with the descriptions contained in and on the labels affixed to the Products and on any outer boxes containing the Products.
6.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, MASK SKINCARE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY MASK SKINCARE, OR ANY OTHER PERSON ON MASK SKINCARE’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS OF USE.
6.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED ELSEWHERE IN THESE TERMS OF USE OR AT LAW, NEITHER PARTY HERETO NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, NOR ANY AFFILIATE, SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF OR COST OF CAPITAL, LOSS OF BUSINESS REPUTATION, LOSS OF OPPORTUNITY, LOSS OF DATA, LOSS OF ANTICIPATED PROFITS OR REVENUE, LOSS OF PRODUCT, NON-OPERATION OR INCREASED EXPENSE OF OPERATION OF EQUIPMENT OR SYSTEMS, OR COST OF PURCHASE OR REPLACEMENT PRODUCT, COSTS ARISING UNDER OR IN CONNECTION WITH THESE TERMS OF USE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCT LIABILITY, OR OTHERWISE.
6.4 TO THE GREATEST EXTENT PERMITTED UNDER ANY APPLICABLE LAW, MASK SKINCARE’S AGGREGATE LIABILITY TO YOU ARISING DIRECTLY OR INDIRECTLY OUT OF THESE TERMS OF USE OR THE PRODUCT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID OR PAYABLE TO YOU PURSUANT TO THESE TERMS OF USE FOR THE TRAILING 6 MONTH PERIOD THAT SUCH CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT SUCH LIABILITY ARISES WITHIN THE FIRST 6 MONTHS OF THE AGREEMENT, MASK SKINCARE’S LIABILITY WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UP TO THAT POINT AND WILL NOT BE PRO-RATED TO A 6 MONTH PERIOD.
6.5 The provisions of this Section 6 will survive termination of these Terms of Use.
7. Indemnification.
7.1 You agree to defend, indemnify and hold harmless MASK SKINCARE and its affiliates, subsidiaries, agents, licensors, managers, members, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
(i) Your use of and access to the Website, including any data or content transmitted or received by You;
(ii) Your violation of any term of these Terms of Use;
(iii) Your violation of any third-party right, including without limitation any right of privacy, right of publicity or intellectual property rights;
(iv) Your violation of any applicable law, rule or regulation;
(v) any inaccurate information that is submitted via Your account; or
(vi) any other party’s access and use of the Website with Your unique username, password, or other appropriate security code. You also agree to indemnify MASK SKINCARE for any loss, damages, or costs, including reasonable attorneys’ fees, resulting from Your use of any data gathering and extraction tools or any other action You take that imposes an unreasonable burden or load the infrastructure of the Website.
8. Interest.
8.1 If any amount owing under these Terms of Use is not paid when due, such amount will bear interest at the rate of 10% per annum. The provisions of this Section 8 will survive termination of these Terms of Use.
9. Termination.
9.1 Either MASK SKINCARE or You may terminate these Terms of Use at any time by giving notice of termination to the other. Termination of these Terms of Use will be without prejudice to the rights and obligations accrued to the date of termination.
9.2 After termination of these Terms of Use, You may sell, as provided in Section 5, any units of the Products which You have or subsequently receive, unless You are in default at the time of termination. Provided further, however, that You agree that You will not sell Products past the date of expiration.
10. Notices.
10.1 Provided that the party giving such notice obtains acknowledgement or confirmation by email transmission that such notice has been received by the party to be notified, all notices and other communications and approvals permitted or required by the provisions of these Terms of Use shall be in writing and shall be sent via e-mail to the email address as provided in Section 10.2 below. By giving to the other party hereto at least ten (10) days’ notice thereof, each party hereto shall have the right from time to time and at any time while these Terms of Use are in effect to change its respective email address and each shall have the right to specify as its new email address any email address.
10.2 MASK SKINCARE’s notice to You will be sent to You based on the most recent contact information that You provided to MASK SKINCARE. But if such information is not current, then MASK SKINCARE will satisfy its obligation to provide notice by sending its notice to You to Your most recent email address provided in your account. Your notice to MASK SKINCARE must be sent via email to: info@maskskincare.com
11. Amendment and Waiver; Severability.
11.1 MASK SKINCARE reserves the right, in MASK SKINCARE’s sole discretion, to change these Terms of Use at any time by posting a revised Terms of Use on the Website. It is Your responsibility to check periodically for any changes MASK SKINCARE may make to these Terms of Use. Your continued use of the Website following the posting of changes to these Terms of Use means You accept the changes.
11.2 If any provision or any part of any provision of these Terms of Use shall not be valid for any reason, such provision shall be entirely severable from, and shall have no effect upon, the remainder of these Terms of Use. Any such invalid provision shall be subject to partial enforcement to the extent necessary to protect the interests of the parties.
11.3 No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and MASK SKINCARE’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
12. Waiver of Injunctive or Other Equitable Relief.
12.1 IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES DIRECLTY OR INDIRECTLY IN CONNECTION WITH THE PRODUCTS OR YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. TO THE GREASTEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY AND ALL RIGHTS TO SEEK AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND AGAINST MASK SKINCARE.
13. Dispute Resolution.
13.1 PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH MASK SKINCARE AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.
13.2 If any controversy, allegation, dispute or claim arises out of or relates to the Product, these Terms of Use, or any other controversy, allegation, dispute or claim against MASK SKINCARE regarding any interaction or transaction between You and or MASK SKINCARE, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of MASK SKINCARE’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in 13.8), then You and MASK SKINCARE agree to engage in good-faith informal efforts to resolve the Dispute or Excluded Dispute by sending a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. MASK SKINCARE’s notice to You will be sent to You based on the most recent contact information that You provided to MASK SKINCARE. But if such information is not current, then MASK SKINCARE will satisfy its obligation to provide notice by sending its notice to You to Your most recent email address provided in your account. Your notice to MASK SKINCARE must be sent via email to: info@maskskincare.com. The written description included in Your notice must provide at least the following information: Your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought. For a period of sixty (60) days from the date of receipt of notice from the other party, MASK SKINCARE and You agree to negotiate in good faith about the dispute through an informal telephonic dispute resolution conference between You and MASK SKINCARE in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either You or MASK SKINCARE to resolve the Dispute or Excluded Dispute on terms with respect to which You and MASK SKINCARE, in each of our sole discretion, are not comfortable. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
13.3 If we cannot resolve a Dispute as set forth in Section 13.2 within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND MASK SKINCARE (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms of Use, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.
13.4 The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between MASK SKINCARE and You regarding these Terms of Use. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. MASK SKINCARE and You agree, however, that the applicable state, federal or provincial law, as contemplated in Section 13.10 below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between You and MASK SKINCARE regarding these Terms of Use and the Products or any other type of Dispute, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles. An Excluded Dispute will only be subject to binding arbitration if the parties mutually agree.
13.5 Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”) Rules (collectively, “Rules”), except as modified herein, and the arbitration will be administered by the AAA.
13.6 If after sixty (60) days the informal dispute resolution procedure set forth in Section 13.2 above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. The arbitration shall be heard by a single arbitrator, unless the claim amount exceeds $500,000.00, in which case the dispute shall be heard by a panel of three arbitrators. The arbitrator(s) shall be either a retired judge or an attorney licensed to practice law in the state of Michigan. The parties will first attempt to agree on an arbitrator(s). If the parties are unable to agree upon an arbitrator within twenty one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules. The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this Section. The arbitrator’s award of damages and/or other relief must be consistent with the terms of the limitation of liability in Section 6 above as to the types and the amounts of damages or other relief for which a party may be held liable. Pursuant to the Commercial Arbitration Rules, the arbitrators will have the authority to allocate the costs of the arbitration process among the parties, but will only have the authority to allocate attorneys' fees if a particular law permits them to do so. If the arbitrator finds that either the substance of Your claim or the relief sought in Your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), MASK SKINCARE will have the right to recover its attorneys’ fees and expenses. This arbitration provision shall survive termination of these Terms of Use or the Service.
13.7 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST MASK SKINCARE, THEN YOU MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13.2) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 13.2; or (b) filing for arbitration as set forth in Section 13.6.
13.8 The foregoing provisions of this Section 13 will not apply to any legal action taken by MASK SKINCARE to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to MASK SKINCARE’s intellectual property rights (including any that MASK SKINCARE may claim are in dispute), MASK SKINCARE’s operations, and/or MASK SKINCARE’s Products.
13.9 Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or federal court in Palm Beach County, Florida. Accordingly, You and MASK SKINCARE consent to the exclusive personal jurisdiction and venue of such courts for such matters.
13.10 These Terms of Use will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of Florida, without regard to its conflicts of law provisions.
14. Confidentiality.
14.1 You acknowledge that as a result of Your dealings with MASK SKINCARE, that You may be privy to certain confidential information of MASK SKINCARE, including but not limited to wholesale pricing, business processes, sales models, strategies, research, algorithms, software, operational data, policies, methods, plans, agreements, contracts, financial data, customer databases and information, vendor information, trade secrets, know-how, and other documents (collectively the “Confidential Information"). You understand that the above list is not exhaustive, and that Confidential Information also includes other Confidential Information that is marked or otherwise identified or treated as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Confidentiality obligations shall not extend to information that is in the public domain, has become public domain other than by Your breach of confidentiality, that is lawfully received from third parties, or to the extent You are held to disclose information under the law or by governmental or judicial order, in which case You shall notify MASK SKINCARE immediately and cooperate in seeking a protective order. You agree to, in perpetuity, hold MASK SKINCARE’s Confidential Information in strictest confidence, and You shall not disclose Confidential Information to any third party without prior written consent from MASK SKINCARE. Nothing in this agreement conveys title, rights, or interest to You in any of MASK SKINCARE Confidential Information or intellectual property rights.
15. Section Headings.
15.1 Section headings are for convenient reference only and shall not affect the meaning or have any bearing on the interpretation of any provision of these Terms of Use.