Welcome to the Lashify Inc. (“Lashify,” “we,” “us,” or “our”) website, located at www.lashify.com (the “Website”).
If there is a conflict between these Terms of Service and the Supplemental Terms, the Supplemental Terms will govern and control with respect to the applicable features, functionality, tools, content, and promotions.
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
Please review Section 10 below for more details regarding arbitration.
BY ACCESSING OR USING THE WEBSITE, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE WEBSITE. Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Website, and may subject you to civil and criminal penalties.
1. ABOUT THE TERMS
1.1 MODIFICATIONS OF THESE TERMS
Lashify reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions. If we choose to amend the Terms, we will update the “Last Updated” field at the top of the Terms and post the updated version. We may also notify you by e-mail or another means as required under applicable law. By continuing to use the Website after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. If the amended Terms are not acceptable to you, your only recourse is to stop using the Website.
No other modification, amendment, supplement of or to the Terms will be binding on Lashify unless it is in writing and signed by an authorized representative of Lashify.
1.2 MODIFICATIONS AND UPDATES TO THE WEBSITE
Lashify reserves the right, in its sole discretion, to modify or discontinue offering the Website, in whole or in part, including any features, functionality, tools or Content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of your Content at our sole discretion at any time without prior notice to you.
You agree that Lashify has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or Content, and will not be liable with respect to any such modifications, discontinuance or deletions.
1.3 INTERNATIONAL USERS
The Website is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Website from any territory where the Website or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the Website from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules, and regulations, including export laws and any regulations and local laws regarding online conduct and content.
2.1 ACCOUNT REGISTRATION
While certain Content is publicly available, you must register for a user account before you are able to access all areas of the Website. You may register to create an account directly via the Website. To create an account, you must be at least 18 years of age and not barred from using our Website under applicable law. Parents and legal guardians are responsible for the acts of their children using the Services.
You may not register for an account on behalf of any person (other than yourself).
No person or entity may have more than one active account at any given time.
2.2 ACCOUNT SET-UP
Your account and account profile page will be created based upon the information you provide to us.
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date. Please note that the name and contact information that you submit when you register will be shared in accordance with your selections in your account settings when you share your Content.
When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Lashify account or any other account that you may connect to your Lashify account. You agree not to disclose your username or password to any third party, and you agree to immediately notify Lashify of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. To the maximum extent permitted under applicable law, Lashify cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2.3 ACCOUNT SUSPENSION AND CANCELLATION
You may cancel your account at any time.
We may, to the maximum extent permitted under applicable law, without liability to you and without limiting our other remedies, with or without prior notice and at any time, (i) limit, suspend, deactivate, or cancel your account and take technical and legal steps to prevent you from using our Website at any time for any reason, and (ii) screen or delay the posting or delivery of your Content.
Lashify reserves the right to suspend or terminate your account or your access to the Website if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of users who fail to comply with the Terms, including the terms and conditions regarding user conduct, as set forth in the "User Conduct Guidelines" section below and elsewhere in the Terms.
Except as otherwise provided under applicable law, if your account is deactivated or cancelled, Lashify will have the right, but not the obligation to delete your Content.
3. LASHICOIN REWARDS
IN ADDITION TO LASHIFY’S TERMS AND CONDITIONS, DESCRIBED ABOVE, BY PARTICIPATING IN LASHICOIN REWARDS PROGRAM, YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE LASHICOIN REWARDS PROGRAM TERMS AND CONDITIONS (“LASHICOIN TERMS”), SET FORTH BELOW. IF YOU DO NOT AGREE TO THE LASHICOIN TERMS AND CONDITIONS, YOU MAY NOT PARTICIPATE IN THE LASHICOIN REWARDS PROGRAM.
3.1 ABOUT THE LASHICOIN TERMS
The Lashicoin Rewards Program is a loyalty program for Lashify customers that allows those customers to earn and use “Lashicoin.”
3.2 EXPIRATION AND DURATION
Your participation in the Lashicoin Rewards Program begins on the day you sign up and continues so long as you are an active customer. Your participation will expire at Lashify’s discretion, if you terminate your Lashify Account, or when Lashify terminates the program.
Except where prohibited by law, Lashicoin may expire following twelve (12) months without a purchase on your account.
3.3 HOW TO EARN AND USE LASHICOIN
Earn by Purchasing - You will earn Lashicoin as you make Lashify purchases. Each full U.S. dollar spent, excluding gift cards, taxes, and shipping, will earn 1 Lashicoin. For example, a $9.99 USD product purchase would yield 9 Lashicoin. Lashicoin will be added to your account and will be available to use three (3) days after your purchase.
Earn by Performing Actions – you can also earn Lashicoin by performing certain actions on the Website, such as joining our email list.
3.4 USING YOUR LASHICOIN
From time to time, Lashify will provide offers for you to redeem your Lashicoin based on your purchasing activity. Lashify makes no representations regarding the frequency or value of these redemption offers.
Lashify may modify or terminate a particular offer at any time in its sole and absolute discretion, without prior notice except as expressly set out in these Terms or required by applicable law.
3.5 MODIFICATION AND CHANGES TO THE LASHICOIN REWARDS PROGRAM
Lashify reserves the right to change, cancel, restrict, or otherwise modify the Lashicoin Rewards Program at any time, for any reason, including the Lashicoin-to-dollar conversion ratio, the expiration policy, membership benefits, and membership eligibility. Changes made may be made by Lashify without advance notice at its sole and absolute discretion to the maximum extent allowable under applicable law, and these changes may affect your ability to use Lashicoin already accumulated. It is your responsibility to review the Program terms and stay informed of any changes.
You cannot redeem Lashicoin for cash. Lashicoin is non-transferable. Lashicoin accumulated on different accounts cannot be combined or aggregated. Lashicoin earned in the purchase of a product cannot be redeemed within the same transaction. Your Lashicoin Rewards Program membership may be cancelled at any time. Upon cancellation, any unused Lashicoin accrued in your account will be forfeited and cannot be redeemed or transferred to another person.
4. PAYMENT TERMS
If you have signed up for one of Lashify’s subscription products, you agree to pay the monthly subscription fee at the rates in effect when the charges are incurred, including any applicable taxes. Any change in the subscription fee will go into effect for the next billing period after we provide notice of the change. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE LASHIFY TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a subscription, we (or our third-party payment processor) 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 Lashify. Your subscription continues until cancelled by you or we terminate your access to or use of the Website or subscription in accordance with these Terms. You can cancel your subscription at any time from within our Website, or by contacting us at email@example.com.
4.2 PAYMENT/CREDIT CARDS
YOU ARE RESPONSIBLE FOR PROVIDING LASHIFY WITH VALID CREDIT CARD OR PAYMENT ACCOUNT DETAILS. 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. All fees and applicable taxes, if any, are payable in United States dollars.
If you wish to designate a different credit card or payment account, or if there is a change in your credit card or payment account status, you must change the Payment Information in your account.
We may contact you via email in connection with a problem with your credit card or payment account. If Lashify is unable to successfully charge your credit card or payment account, we reserve the right to restrict or suspend access to your account, or to terminate your account.
Unless stated in Lashify’s Return Policy or as Lashify otherwise agreed, stated in writing, or provided under applicable law, all fees and charges are nonrefundable.
5. USER CONDUCT GUIDELINES
Any time you access or use the Website, you are required to comply with our user conduct guidelines, as set forth below.
You agree that you will access and use the Website and Content for your personal use only.
YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE WEBSITE AND YOUR CONTENT. ABUSE OF THE WEBSITE OR CONTENT MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
Public Areas: Your Content may be viewed by other users and by other persons or entities, including through third-party services and websites. Thus, you should only capture, record, upload, stream, share or store videos, images, information, and other content that you are comfortable sharing with others.
You agree that you will not access or use the Website to capture, record, upload, stream, share or store any video or images, or otherwise act in any manner, that:
- is intended to perpetrate a hoax or otherwise defraud, mislead or deceive any person or entity;
- violates, breaches, or circumvents any local, state, federal or other law, rule, or regulation, including any ruling or order of a court or administrative body;
- violates, breaches, or circumvents the rights of any person or entity, including infringing or misappropriating such party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- is defamatory, obscene, pornographic, vulgar, lewd, offensive, or unlawful;
- promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
- is inflammatory, abusive, violent, or threatening or promotes violence or actions that are threatening to any other person;
- promotes illegal or harmful activities or substances; or
- is harmful to children.
Without limiting the above, you are not authorized to access or use the Website:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations, or intentions;
- to collect, store or use any information from or about another user;
- to "stalk" or harass any other user;
- to distribute unsolicited commercial or bulk electronic communications (or, "spam"), chain letters or "pyramid" schemes;
- for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
- access, copy, distribute, share, publish, use or store, or prepare derivative works from any Content that belongs to Lashify, another user or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- transfer your account to another party without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Website if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Website;
- access, search, collect information from, or otherwise interact with the Website by "scraping," "crawling" or "spidering" the Website, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Lashify, unless you have been specifically authorized to do so in a separate agreement with Lashify;
- use, display, mirror or frame the Website, or any feature, functionality, tool or content of the Website, Lashify’s name, any Lashify trademark, logo or other proprietary information, without Lashify’s express written consent;
- interfere with, disrupt, damage or compromise the Website or our systems or the access of any user, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Website or otherwise imposing an unreasonable or disproportionately large load on the Website;
- access, tamper with or use non-public areas of any of the Website, Lashify’s computer systems, or the technical delivery systems of Lashify’s providers;
- probe, scan, or test the vulnerability of any system or network of Lashify or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Lashify or any of Lashify’s providers or any other third party to protect the Website;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Website to send altered, deceptive, or false source-identifying information;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the code or software used to provide the Website;
- export or re-export the Website, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Website or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
5.1 RESPONSIBILITY FOR USER CONTENT
Ultimately, all user Content, whether publicly posted or privately transmitted, is the sole responsibility of the user who originated such content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any user Content or endorse any opinions expressed in such user Content. You understand that by using the Website, you may be exposed to user Content that is offensive, harmful, inaccurate, misleading, fraudulent, or otherwise inappropriate. To the maximum extent permitted under applicable law, Lashify will not be liable in any way for any user Content, including, but not limited to, any errors or omissions in any user Content, or any loss or damage of any kind incurred as a result of any user Content.
We may, but are not required to monitor or control the user Content captured, recorded, uploaded, streamed, shared or stored on or through the Website. Any use or reliance on any user Content is at your own risk.
Lashify reserves the right to investigate violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law and prosecute to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Lashify has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Website by any user, to access, review, preserve and disclose any user Content, or to remove or disable access to any user Content, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Lashify, (iii) to enforce and to ensure a user’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Lashify, its users or members of the public, and (vi) for the purpose of operating and improving the Website (including for customer support purposes).
5.3 OUR COMMITMENT TO ACCESSIBILITY
Lashify is committed to making our website's content accessible and user friendly to everyone.
If you are having difficulty viewing or navigating the content on this website, or notice any content, feature, or functionality that you believe is not fully accessible to people with disabilities, please call our Customer Service team at 323-543-4400 or email our team at firstname.lastname@example.org with “Disabled Access” in the subject line and provide a description of the specific feature you feel is not fully accessible or a suggestion for improvement.
We take your feedback seriously and will consider it as we evaluate ways to accommodate all of our customers and our overall accessibility policies.
Additionally, while we do not control such vendors, we strongly encourage vendors of third-party digital content to provide content that is accessible and user friendly.
6 INTELLECTUAL PROPERTY OWNERSHIP
6.1 LICENSE TO USE
Subject to your compliance with the Terms, Lashify grants you a limited non-exclusive, revocable, non-transferable, non-assignable and non-sublicensable license to access and use the Website, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Website as provided by Lashify, in the manner permitted by the Terms.
The Website and Content, and all features, functionality, tools, and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Website and Content, and all intellectual property rights therein are the exclusive property of Lashify and its licensors. You will not remove, alter, or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Website or Content.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Lashify (the "Lashify Marks") are the property of Lashify, and that you are not permitted to use the Lashify Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or Content of the Website in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Lashify or the intellectual property owner, as applicable.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Lashify or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2 YOUR CONTENT
By uploading, sharing or storing your Content, you hereby grant Lashify a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display your Content in any and all media as necessary to provide the Website and Content to you, including, customer support services, and otherwise operate the Website, including for product development and de-bugging purposes.
You agree that this license includes the right for Lashify to provide, promote, and improve the Website and to make your Content available to other companies, organizations or individuals who have a business relationship with Lashify for the syndication, broadcast, distribution, or publication of such content on other media and services, subject to our terms and conditions for such use.
Such additional uses by Lashify, or other companies, organizations or individuals who partner with us, may be made with no compensation paid to you with respect to your Content.
We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that content to any requirements or limitations of any networks, devices, services or media. You further grant us the right to use, copy, distribute, post, broadcast, publicly perform, publish, and display your name, city, state and other information in connection with your Content as described herein or elsewhere on the Website, subject to any applicable data protection laws.
Lashify does not claim any ownership rights in your Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to Lashify under these Terms.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements, and modifications to the Website ("Feedback"). You may submit Feedback by e-mailing us, at email@example.com. If you provide Feedback, you thereby grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose without any restriction or compensation to you.
7 LINKS TO THIRD-PARTY WEBSITES AND SERVICES
The Website may also provide links to third-party websites, resources, or services. You acknowledge and agree that Lashify is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Lashify of such websites, resources or services or the content, products, or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products, or services available on or through such websites or services.
8 WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1 WARRANTIES BY USERS
You represent and warrant to Lashify that (i) you have the power and authority to accept and agree to the Terms; (ii) you have all the rights, power and authority necessary to grant the rights granted herein to your Content, and that neither your Content, nor Lashify’s use of your Content (or any portion thereof) on or through the Website will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation; and (iii) all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
Neither the information nor the products offered through the Website are intended to treat, cure, prevent, or diagnose any condition, illness, or disease. Please consult with a doctor or medical professional before purchasing or using our products. All Lashify products must be used in strict compliance with our instructions, precautions, and guidelines. You must check the ingredients of all products and refrain from using any product containing ingredients to which you may be allergic. Minors may use our products only with the supervision of a parent or guardian.
We have provided detailed instructions regarding the use of Lashify products, in the form of written and video instructions, directions, tutorials, and other informational materials (including, but not limited to, printed materials and materials available online). Please note that you are responsible for the safe application of all Lashify products and assume the risk of any failure to follow the instructions provided.
The appearance of our products may vary from the pictures on the Website. The images of our products provided on the Website are for illustrative purposes. We make every effort to accurately display our products, but product designs and packaging are changed frequently, so pictures may become quickly outdated and we cannot control differences between the display settings and functionality of various devices.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE WEBSITE AND CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, LASHIFY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE WEBSITE, THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, OR WARRANTIES AS TO THE COMPLETENESS, ACCURACY, OR TIMELINESS OF ANY CONTENT.
IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR WEBSITE IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE WEBSITE.
8.3 LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, LASHIFY DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE WEBSITE, (II) THE ACTS OR OMISSIONS OF ANY OTHER USER OR ANY OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WEBSITE, AND (III) ANY CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE WEBSITE.
- YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE WEBSITE, SUBMITTING AND TRANSMITTING YOUR CONTENT, COMMUNICATING OR INTERACTING WITH OTHER USERS AND ACCESSING, VIEWING OR DOWNLOADING THE USER CONTENT OF OTHER USERS ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE LASHIFY AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL LASHIFY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LASHIFY HAS 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.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, LASHIFY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO LASHIFY FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS (US$100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO LASHIFY, AS APPLICABLE.
8.4 BASIS OF THE BARGAIN
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LASHIFY AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
Except to the extent prohibited by applicable law, you agree to release, defend, indemnify, and hold Lashify its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively "indemnify" or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Website, including any and all features, functionality, tools, content and promotions available on and through the Website, (ii) your Content, (iii) any interactions with any other user, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.
By using the #LASHIFYME response, you hereby grant to Lashify and its related companies, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, marketing or public relations agencies, and other affiliates (collectively the “Lashify Licensed Parties”) a worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable, sublicensable right to use your User Content in any manner to be determined in the Lashify Licensed Parties’ sole discretion, including but not limited to on webpages and social media pages operated by the Lashify Licensed Parties, in promotional e-mails and advertisements, in any and all other marketing, promotional, and advertising initiatives, online and digital marketing material, and in any and in any media now or hereafter known, throughout the world. You further grant the Lashify Licensed Parties the right to use the following information: your username, real name, image, likeness, voice, descriptions of you, location, and other identifying information in connection with any use of your User Content. You agree that even if you reply to Lashify with #LASHIFYME, Lashify has no obligation to use your User Content or to identify your name or other identifying information in connection with the User Content.
The Lashify Licensed Parties, with no obligation to you whatsoever, may use, copy, modify, display, reproduce, distribute, publish, transmit, create derivative works from, combine with other materials, alter, and/or edit your User Content in any manner in their sole discretion, including using your username, real name, image, likeness, descriptions of you, location or other identifying information, including but not limited to your voice, in connection with any use of your User Content. These materials may be protected by copyright, trademark, patent, and other intellectual property laws. You acknowledge and agree that you do not acquire any ownership or other rights by authorizing the use of your User Content.
By agreeing to allow Lashify to display your User Content, you hereby agree, represent, and warrant that (i) you are at least 18 years of age and solely responsible for your User Content; (ii) you own all rights in and to your User Content and/or have obtained appropriate rights and permissions from any and all other persons and/or entities who own, manage, or otherwise claim any rights to such User Content; (iii) the Lashify Licensed Parties’ use of your User Content as described herein will not violate any third-party rights, including but not limited to copyright, trademark, patent, trade secret, privacy, publicity, moral, proprietary, or other rights, of any third party, or any law, rule or regulation; and (v) the User Content is not obscene, immoral, threatening, libelous, defamatory, pornographic, abusive, indecent, harassing, hateful, offensive, or otherwise unlawful.
You hereby agree, represent, and warrant that your User Content is non-confidential and, by granting permission for Lashify Licensed Parties to use your User Content, you are consenting to the Lashify Licensed Parties’ collection of any personal information you provide for the Lashify Licensed Parties’ use and disclosure in connection with the use of your User Content as described herein. If you do not agree to the collection, use, and disclosure of your personal information in this way, please do not agree to the use of your User Content. You hereby release, discharge, and agree to hold harmless the Lashify Licensed Parties and any person acting on their behalf from any liability related in any way to the Lashify Licensed Parties’ use of your User Content and personal information and as outlined in this document.
10 GOVERNING LAW AND DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND LASHIFY HAVE AGAINST EACH OTHER ARE RESOLVED.
10.1 GOVERNING LAW
The Terms shall be governed by and interpreted in accordance with the laws of the State of California without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies, and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules ("AAA Rules"), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in North Hollywood, California before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
10.3 JURISDICTION AND VENUE
Subject to the above arbitration provisions, you and Lashify agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Website (collectively, "Disputes") in the federal or state courts located in North Hollywood, California and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Lashify retains the right to submit a Dispute to any court of competent jurisdiction. Lashify also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
10.4 PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST LASHIFY ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND LASHIFY OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
10.5 FUTURE AMENDMENTS TO THIS SECTION
You agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Lashify. We will notify you of amendments to this section by posting the amended Terms on lashify.com.
11 SMS TERMS OF SERVICE
- User Opt In: The Program allows users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
- User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Lashify and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
- Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of digital and physical products, services. Messages may include checkout reminders.
- Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with us.
- Support Instructions:For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
- MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty: The Program is offered on an "as-is" basis, may not be available in all areas at all times, and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control. Carriers are not liable for delayed or undelivered mobile messages.
- Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
- Age Restriction: You may not use or engage with the Platform if you are under eighteen (18) years of age. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
- Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
- Dispute Resolution with SMS provider: In the event that there is a dispute, claim, or controversy between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in North Hollywood, Californiabefore one arbitrator. The other provisions applicable to arbitration in Section 9 above will apply to that proceeding.
- Florida Law:We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by us in direct response to mobile messages or requests from You (including but are not limited to response to keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
12.1 ENTIRE AGREEMENT
You may not assign, transfer, delegate, or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation, or sublicense without the foregoing consent will be null and void. Lashify may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors, and assigns.
12.3 NO AGENCY
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
12.4 SURVIVAL OF TERMS
Upon any termination, discontinuation or cancellation of this agreement, the Website or your Account, the following provisions will survive: 1.3, 2, 3, 4 (only to amounts owed to Lashify prior to termination), 5, 6, 7, 8, 9, 10, and 11.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
13 CONTACT US
If you have any questions or concerns, please contact Lashify at email@example.com.You can also write to us at:
11437 Chandler Blvd
North Hollywood, CA 91601
13.1 CALIFORNIA RESIDENTS
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Website or requests to receive further information regarding use of the Website may be sent to the above address or to firstname.lastname@example.org. 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 Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
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