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TERMS OF SERVICE

 

Last Updated: June 26, 2023

Acceptance of the Terms

The following terms of service, (these “Terms”) are entered into by and between you and Cellap, the official internet-reseller of the cosmetic products Cellcosmet and Cellmen in USA (“Cellap,” “Company,” “we,” “us” or “our”).  These Terms govern your access to and use of our website, https://cellcosmet-cellmen.us/ (the “Site”) along with any other products or services offered by us, whether through the Site or otherwise (collectively and together with the Site, the “Services”).  

 

Please read these Terms carefully. By accessing, browsing or otherwise using the Services or by clicking to accept or agree to the Terms when this option is made available to you, you (1) acknowledge that you have read and understood these Terms, (2) represent and warrant that you meet all of our eligibility requirements for using the Services as described in these Terms, and (3) accept and agree to be bound by these Terms, including any other terms applicable to the Services that are incorporated herein by reference. If you are using the Services on behalf of an entity, you are agreeing to these Terms for that entity and are representing to us that you have the authority to bind that entity to these Terms (in which case “you” will refer to that entity). If you do not accept these Terms or do not satisfy the eligibility requirements set forth below, you may not access or use the Services.  

 

BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED BELOW, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND CELLAP WILL BE RESOLVED BY ARBITRATION SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services

 

Privacy Policy

Your use of, and participation in, the Services offered by the Company is subject to the terms set forth in our privacy policy located at https://cellcosmet-cellmen.us/us_en/privacy-policy (the “Privacy Policy”). Our Privacy Policy details how we collect and use your information.

 

Changes to the Terms of Service

We reserve the right to update and revise these Terms at any time. We’ll make sure to also change the “Last Updated” date at the top of this page so you can tell if these Terms have changed since your last visit. Any such changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Please review these Terms regularly because once we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms.

 

Access to Services; Account Registration

By accessing the Services, you warrant that: 

 

(i)             You are legally capable of entering into binding contracts;

(ii)           All registration information you submit is truthful and accurate;

(iii)         You will maintain the accuracy of such information; and

(iv)          Your use of the Services does not violate any applicable law or regulation.

 

To access our Services, you may be required to register with the Site and create a user account (“Account”). If you create an Account, you are solely responsible for any activity that occurs through your Account. In order for us to provide you the best possible service, you agree to provide us with complete, accurate, and updated information for your Account at all times. You agree that all information that you submit upon creation of your Account is accurate and truthful and you have the right to post the content on the Service and grant a license to Cellap. If any information is incorrect or outdated, it can lead to errors or delays, for which we will not be responsible.

 

You should not share your Account information. You should not use another person’s Account or registration information for the Services without permission. Similarly, no one else should be able to use your Account without permission. You are solely responsible for keeping your Account and Account password secure and for any consequence resulting from your failure to do so. You should never publish, distribute, or post login information for your Account.

 

We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. You can always delete your Account by emailing us at customerservice.us@cellcosmet-cellmen.com. 

 

Payment Processer; Third Party Service Provider

In the course of your use of the Services, third party payment service providers may receive and implement updated credit card information from your credit card issuer in order to prevent your payment or subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to third party payment service providers at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer. 

 

Our obligation to provide the Services only comes into being when we take receipt of your purchase of the Services. Prices include local taxes. You agree not to hold us responsible for banking charges incurred due to payments on your account. You agree that you are not permitted to resell any Services for commercial purposes.

 

Purchase Policies; Payment Cancellation; and Returns

The products and services available on this Site, and any samples thereof we may provide to you, are for personal use only. You may not sell or re-sell any of the products or services, or samples thereof, which you purchase or otherwise receive from us. We reserve the right, with or without notice, to cancel or reduce the quantity of any orders that we believe, in our sole discretion, may result in a violation of Terms. 

 

In order to request to return your product(s), you must contact us via email at customerservice.us@cellcosmet-cellmen.com within seven (7) days of having received your product(s). Please provide detailed information for your reason for requesting a return. Returns may be accepted or denied in our sole discretion. If we approve your return, we will provide you with a Return Authorization number, along with further details, via e-mail. No returns will be processed without a Return Authorization number. Duties and taxes are not refunded in the case of returned products and the Company is not responsible for such charges

 

All purchases that have not had a return intitiated within seven (7) days of receipt of the products are non-refundable. 

 

Cancellations by Cellap

We may suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice. A breach of these Terms includes, without limitation, the unauthorized copying or download of content from the Services. 

 

Eligibility; User Restrictions

We only permit individuals who are at least 18 years old, or the age of majority in your province, territory or country, and who can form legally binding contracts with us to use the Services. Individuals under the age of 18, or the applicable age of majority, (“Minors”) may utilize the Services only with the consent and support of a parent, legal guardian or other qualified adult. If you are a parent or guardian and you allow your Minor to use the Services, you agree to be bound by the Minor’s use of the Services and by these Terms. If you are a Minor and do not have the requisite parent or guardian consent, please do not attempt to access or use the Services. 

 

You can only use or receive the Services to the extent the laws of your jurisdiction or the United States do not bar you from doing so. Please make sure these Terms are in compliance with all laws, rules and regulations that apply to you. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

 

This Site is intended for use only by persons located in the United States. We make no claims that this Site or any of its content is accessible or appropriate outside of the United States. If you access this Site from outside the United States, you do so at your own initiative and are responsible for compliance with local laws.

 

Use of the Services; Restrictions on Use

We may from time to time in our sole discretion develop and provide updates to the Services, change the Services, restrict access to the Services (including to registered users) or withdraw or terminate the Services entirely, and we reserve the right to do so in our sole discretion without notice.  Any such updates or changes will be deemed part of the Services and subject to all terms and conditions of these Terms. We will not be liable to you or any third party for any modification, suspension or discontinuance of the Services. In the event of modification or termination, you will still be bound by your obligations under these Terms, including the warranties made by you, and by the disclaimers and limitations of liability.

 

You may only use the Services as explicitly authorized and in compliance with any policies made available to you within the Services.  You may not use such proprietary information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. Without limiting the foregoing, you may not do any of the following while accessing or using the Services: 

 

●  Use the Services for any revenue generating endeavor, commercial enterprise, or other purpose other than for personal, non-commercial use, without our express written consent;

● Express or imply that any statements you make are endorsed by Cellap;

●  Scrape the Services or use other automated or manual means to take our content without our express prior written consent;

●  Modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of the Services not intended to be so read;

● Take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third party providers’ infrastructure;

● Interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;

● Bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services, including without limitation other accounts, computer systems or networks connected to the Services;

● Run any form of auto-responder or “spam” on the Services; 

● Access or use the Services for any illegal or unauthorized purpose, including to harass, abuse, defame or otherwise infringe or violate the rights of any other party; or

● Otherwise take any action in violation of these Terms.

 

Links to Third Party Websites

We may provide links to third party websites or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We do not review or endorse any of those websites or services. We are not responsible in any way for: (a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, or (d) the use to which others make of these other websites and services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.  You may link to our Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

 

This Site may provide certain social media features that enable you to:

 

● Link from your own or certain third party websites to certain content on this Site.
Send e-mails or other communications with certain content, or links to certain content, on this Site.

● Cause limited portions of content on this Site to be displayed or appear to be displayed on your own or certain third party websites.

 

You may use these features solely as they are provided by us, solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

 

● Establish a link from any website that is not owned by you.

● Cause the Site or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.

● Link to any part of the Site other than the homepage.

● Otherwise take any action with respect to the materials on this Site that is inconsistent with any other provision of these Terms and Conditions.

 

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Prohibited Uses set out above in these Terms and Conditions.

You agree to cooperate with us in causing any unauthorised framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.

 

We may disable all or any social media features and any links at any time without notice in our discretion.

 

Intellectual Property

Except as otherwise expressly granted to you in these Terms, we reserve and retain all right, title and interest in the Services, including without limitation, all technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, text, video, graphics, logos, images and icons, as well as the arrangement thereof. You acknowledge that the Services contain proprietary content, information and material protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws, and you agree that, except with our prior written consent or as explicitly provided in these Terms, using the Services does not (1) give you any ownership of any intellectual property rights in our Services or (2) grant you the right to display, modify, reproduce, distribute, create derivative works of, download, store, transmit or otherwise use any of our intellectual property.  Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.

 

In particular, audio or video content from Cellap not explicitly indicated as downloadable may not be downloaded or copied from the Services. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Services. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. 

 

You may not access or use for any commercial purposes any part of the Site or any services or materials available through the Site. You acknowledge and agree that you do not acquire any ownership interest in the Services under these Terms, or any other rights thereto other than to use the Services in accordance with the license granted. Appropriate legal action may be taken for any illegal or unauthorized use of the Services. 

 

To inquire about obtaining authorization to use the materials or content other than as permitted in these Terms, please contact us at customerservice.us@cellcosmet-cellmen.com. 

 

User Generated Content

The Company may enable you to post, upload, store, share, send or display content, images, or other information or to take photos (“User Content”) via the Services. User Consent is made available to you and other users.  Further, by electing to make your User Content available on or through the website, you hereby grant the Company a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, display, perform, reproduce, translate, create derivative works from, and distribute your User Content, in whole or in part, including your name and likeness, in any media.  This license is limited to the purpose of offering and improving the Services.  You represent and warrant that you own your User Content or that you have all rights necessary to grant us a license to use your User Content as described in these Terms.  

 

You represent and warrant that your User Content, the use and provision of your User Content on the Services, and your use of the Services will not (i) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity; (ii) violate, or encourage any conduct that would violate any applicable law or regulation or would give rise to civil liability; (iii) be fraudulent, false, misleading, or deceptive; (iv) be defamatory, obscene, pornographic, vulgar, or offensive; (v) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) be violent or threatening or promote violence or actions that are threatening to any person or entity; (vii) promote illegal or harmful activities or substances; or (viii) infringe on the privacy of others, including by recording the Services.

 

You further agree not to (i) upload any User Content that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (ii) post, advertise, or promote products or services commercially, or upload any User Content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (iii) use the Services in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the Services, or which may expose us or our users to any harm or liability of any type.  

 

The Company may, in its sole discretion, alter, remove, or refuse to display any of your User Content, and may forbid you from posting, uploading, storing, sharing, sending, or displaying your User Content to and via the Services.

 

You agree that we are not responsible for, and do not endorse, User Content posted on the
Services. If you or your User Content violates these Terms, you shall bear legal responsibility. As between you and the Company, any User Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Content. Your User Content will not be subject to any obligation of confidence on the part of the Company other than as set forth in our Privacy Policy, and the Company will not be liable for any use or disclosure of any User Content you provide.

 

SMS/MMS Mobile Message Program 

From time to time, we may collect your mobile phone number and use that number to message you via SMS or MMS messages, which you agree to participate in subject to these Terms and Conditions and Privacy Policy. By providing us with your mobile phone number you are opting in to receive these messages to your phone. You agree that by providing us with your mobile phone number you agree to receive SMS or MMS messages related to, including but not limited to, our services, promotions, marketing, reminders, and solicitation of reviews.  Message and data rates may apply.

 

User Opt Out: If you do not wish to continue to receive messages to your mobile phone, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out. 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 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.

 

Cost and Frequency: Message and data rates may apply. The mobile message 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 mobile message program, text “HELP” to the number you received messages from, or email us at customerservice.us@cellcosmet-cellmen.com.  Please note that the use of this email address is not an acceptable method of opting out of the mobile message program. Opt outs must be submitted in accordance with the procedures set forth above.

 

MMS Disclosure: The mobile message program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

 

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.

 

Privacy: The messages sent to and from your mobile phone, and any information gathered in relation to these messages, shall be handled in accordance with our Privacy Policy.

 

Availability of the Services

Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. If a fault occurs in our Services, please report it to us at customerservice.us@cellcosmet-cellmen.com and we will review your complaint and, where we determine it appropriate to do so, correct the fault. We will not be liable to you if the Services are unavailable from time to time.

 

Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can. 

 

For optimal performance, we highly recommend the use of Firefox or Safari. This will give you the ability to make secure transactions online and send your personal information securely over the internet. Please be sure JavaScript and Cookies are enabled; both are required to complete online transactions.

 

Third Party Materials and Content

You understand that the Services may display, include, or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites (“Third Party Materials”).  In consideration for Cellap allowing you to use the Services, you agree that we, our affiliates, and third party partners may place advertising on the Services. 

 

You acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. We expressly disclaim any responsibility for all aspects of the Third Party Materials and you further acknowledge and agree that Company 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 use of or reliance on any content, goods or services in connection with any Third Party Materials.

 

Use of any third party trademarks or third party content on or in connection with the Services does not constitute affiliation with or endorsement of these third parties. Nothing in these Terms grants you any license to third party trademarks or content, which shall remain the property of their respective owners.

 

Warranty Disclaimers; Limitation of Liability

THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY THE COMPANY OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES OR ANY CONTENT AVAILABLE THROUGH ANY OF THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. 

 

IN NO EVENT WHATSOEVER SHALL THE COMPANY, ITS AFFILIATES, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH THE SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. COMPANY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS, COMPANY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES, COMPANY’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY FEES PAID BY YOU TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM IS ASSERTED FOR ANY OF THE SERVICES OR FEATURE RELEVANT TO THE CLAIM, OR (2) US$500.00.

 

THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

 

Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Services or your use of any information obtained through the Services.

 

Governing Law

No matter where you’re located, the laws of the state of New York will govern these Terms and the relationship between you and the Company as if you signed these Terms in New York, without regard to New York state’s conflicts of laws rules. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. The parties agree to submit to the federal or state courts in New York for exclusive jurisdiction of any dispute arising out of or related to your use of the Services or your breach of these Terms.

 

Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND CELLAP TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND CELLAP FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND CELLAP AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. CELLAP AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. 

FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

 

  1. For any dispute or claim that you have against Cellap, that Cellap has against you or that you have, or Cellap has, in each case arising from, relating to, or stemming from these Terms, our Services, or any aspect of the relationship between you and Cellap as relates to these Terms, our Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and Cellap agree to attempt to first resolve the Claim informally via the following process. If you assert a Claim against Cellap, you will first contact Cellap by sending a written notice of your Claim (“Claimant Notice”) to Cellap by email to customerservice.us@cellcosmet-cellmen.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If Cellap asserts a Claim against you, Cellap will first contact you by sending a written notice of Cellap’s Claim (“Cellap Notice”), and each of a Claimant Notice and Cellap Notice, a “Notice”) to you via email to the primary email address associated with your account. The Cellap Notice must (i) include the name of a Cellap contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If you and Cellap cannot reach an agreement to resolve the Claim within thirty (30) days after you or Cellap receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Cellap first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
  2. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or Cellap, including any disputes in which you or Cellap seek injunctive or other equitable relief for the alleged unlawful use of your or Cellap’s intellectual property or other infringement of your or Cellap’s intellectual property rights (“IP Claims”)], all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with the preceding paragraph will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
  3. These Terms affect interstate commerce, and the enforceability of this section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law.
  4. All Claims must be submitted to the American Arbitration Association (“AAA”) and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then-current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms as follows:

    1.    YOU AND CELLAP AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND CELLAP ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Cellap or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.

    2.    For any arbitration you initiate, you will pay the consumer filing fee, and Cellap will pay the remaining AAA fees and costs. For any arbitration initiated by Cellap, Cellap will pay all AAA fees and costs.

    3.    For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (iii) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. 

    4.    If you or Cellap submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Cellap agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Cellap agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.  

    5.    The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.

    6.    The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Cellap or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Cellap understand and agree that when twenty-five (25) or more similar claims are asserted against Cellap or you by the same or coordinated counsel or are otherwise resolved, your or Cellap’s Claim might be delayed. For such coordinated actions, you and Cellap also agree to the following coordinated bellwether process. Counsel for the claimants and counsel for Cellap shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this staged process from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Cellap or you.     
  5. One Year to Assert Claims. To the extent permitted by law, any Claim by you or Cellap relating in any way to these Terms, our Services, or any aspect of the relationship between you and Cellap as relates to these Terms or our Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Cellap will not have the right to assert the Claim.
  6. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at customerservice.us@cellcosmet-cellmen.com. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with the “Governing Law” section.
  7. If any portion of this section is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this section; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this section will be enforceable.
  8. Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this section of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.

 

Severability

If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.

 

Entire Agreement

These Terms constitute the entire agreement between you and the Company and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved.

 

Force Majeure

We take our commitment to customers seriously, and we’ll do what we can for you. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including—without limitation—mechanical, electronic or communications failure or degradation, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, or our inability or delay in obtaining supplies of adequate or suitable materials.

 

Assignment

You cannot assign, transfer or sublicense these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.

 

Waiver

If we do not enforce any part of these Terms, it does not mean we give up the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.

 

Release

You release the Company and our successors from all losses, damages, rights, and demands and actions of any kind, including personal injuries, death, and property damage, that are directly or indirectly related to or arise from your use of the Services (collectively, “Claims”). If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which, if known by him would have materially affected his settlement with the debtor.” This release does not apply to any Claims for unconscionable commercial practice by the Company or fraud, deception, false, promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services.

 

Comments, Concerns and Complaints

All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: customerservice.us@cellcosmet-cellmen.com.