Terms & Conditions
Welcome to this product website (the “Website”), owned and operated by Eighteen B LLC a Delaware company (“Eighteen B”, “us”). This Agreement of Use and Conditions of Purchase and any amendments or supplements to it, (the "Agreement") form a legally binding agreement between you and Eighteen B. This Agreement governs your access to and use the Website, any order you place through the Website or by telephone, and, as applicable, your use or attempted use of our products and services (collectively, “Your Use”).
Agreement to Terms
Your Use of the Website shall be deemed to constitute your consent to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE, DO NOT ORDER, AND DO NOT USE A PRODUCT.
THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (DEFINED BELOW) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, THE ARBITRATION SECTION BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT REQUIRES INDIVIDUAL ARBITRATION INSTEAD OF JURY TRIALS AND CLASS ACTIONS.
Please refer to our
Changes to Agreement
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Website after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Website anymore. Because our Website are evolving over time we may change or discontinue all or any part of the Website, at any time and without notice, at our sole discretion.\
Who May Use the Website
You may use the Website and order Product only if you are not barred from using the Website or ordering Product under applicable law and are either (1) 18 years or older and have the power to enter into a binding contract with us and not be barred from doing so under any applicable laws; or (2) 13 years or older and have your parent or guardian's consent to the Agreement. The Website is not intended for children under the age of 13 and no person under the age of 13 may use the Website. If you use the Website, you are affirming that you are at least 13 years old.
We welcome feedback, comments and suggestions for improvements to the Website (“Feedback
”). You can submit Feedback by emailing us at email@example.com
. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license 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.
General Prohibitions and Eighteen B’s Enforcement Rights
You agree not to do any of the following:
Use, display, mirror or frame the Website or any individual element within the Website, Eighteen B’s name, any Eighteen B trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Eighteen B’s express written consent;
Access, tamper with, or use non-public areas of the Website, Eighteen B’s computer systems, or the technical delivery systems of Eighteen B’s providers;
Attempt to probe, scan or test the vulnerability of any Eighteen B system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Eighteen B or any of Eighteen B’s providers or any other third party (including another user) to protect the Website;
Attempt to access or search the Website through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Eighteen B or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Eighteen B trademark, logo URL or product name without Eighteen B’s express written consent;
Use the Website for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Website to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Website;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Website;
Collect or store any personally identifiable information from the Website from other users of the Website without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Website, we have the right to do so for the purpose of operating the Website, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. We have the right to investigate violations of this Agreement or conduct that affects the Website. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Website may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
User Generated Content
Photographs and Videos (as defined below), Submissions (as defined below), and any content you provide to or upload through the Website or share is collectively referred to as “User Content”. By sharing User Content, you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. You also represent that the User Content you provide is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You shall not take any action or upload, post, or otherwise distribute any User Content that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. You shall not take any action or upload, post, or otherwise distribute any User Content that you know is false, misleading, untruthful or inaccurate, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion.
Eighteen B may pull content from our users who share photos and videos on Instagram using our brand hashtags or tagging the @EighteenB Instagram account (“Photographs and Videos”). Eighteen B hashtags may include but are not limited to:
These hashtags are collectively referred to as the “Eighteen B Hashtags”. By posting Photographs and Videos tagged as above, you acknowledge and agree that the Photographs and Videos may be used on the Website, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the Photographs and Videos for identification, promotional activities related to the products and services, including after your termination of your Account or the products and services. You represent and warrant that the posting and use of your Photos, including to the extent such Photos include your name, username, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and other intellectual property rights.
By uploading any User Content you hereby grant and will grant Eighteen B and its affiliated companies, successors and assigns a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Website or the promotion, advertising or marketing of the product and services services, in any form, medium or technology now known or later developed, and including after your termination of your Account or the product and services. For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Except where prohibited by applicable law, by submitting User Content through the Website, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of the User Content or any Photos, Submissions, photograph(s), footage, illustrations, statements or other work contained in the User Content. You are also agreeing to appoint Eighteen B as your irrevocable attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, own and protect the rights in any derivative works created from your User Content, and have the User Content removed from any other website or forum.
You acknowledge and agree that any product reviews, questions, comments, suggestions, ideas, feedback or other information about the products and services (collectively, “Submissions”) that you provide to us are non-confidential (unless the information provided with the submission is explicitly listed as confidential) and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Eighteen B, our users and the public. You understand that the technical processing and transmission of the Website, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
We may terminate your access to and use of the Website, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation, all provisions of this Agreement which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
THE WEBSITE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Website will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
THE INFORMATION (INCLUDING, WITHOUT LIMITATION, ADVICE AND RECOMMENDATIONS) ON THE WEBSITE IS NOT INTENDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION BEFORE STARTING ANY NEW TREATMENT. YOUR USE OF THE WEBSITE IS SUBJECT TO THE ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE WEBSITE.
EIGHTEEN B AND ITS AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE WEBSITE. WHILE EIGHTEEN B STRIVES TO KEEP THE INFORMATION ON THE WEBSITE ACCURATE, COMPLETE, AND UP-TO-DATE, EIGHTEEN B CANNOT GUARANTEE, AND WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE WEBSITE.
Product, Services, Medical & Scientific Information
Eighteen B reserves the right, without prior notice, to discontinue or change specifications and prices on products without incurring any obligation to you. Eighteen B takes reasonable precautions to try to ensure that the prices quoted on the Website are correct. Any medical or scientific information contained in our Website, including without limitation any information regarding any products or services available through our Website, is provided for your general informational purposes, and we make no representation or warranty that such information is accurate or complete. No such information is intended, nor should it be construed, as providing any type of medical advice, nor is it intended to serve as a substitute for the advice, diagnosis or treatment by a licensed physician or other healthcare professional. This Website is not intended to provide comprehensive information regarding the potential uses, precautions, side effects, contraindications or interactions of any products or services made available through our Website. Please follow the instructions, directions and warnings contained in the product labeling and consult with your physician or other healthcare provider to obtain information specific to your healthcare needs prior to using any such products or services.
Eighteen B reserves the right, without prior notice, to discontinue or change specifications and prices on products without incurring any obligation to you. Eighteen B takes reasonable precautions to try to ensure that the prices quoted on the Website are correct, and to describe the items available on the Website as accurately as possible and to depict the most up to date packaging. However, when ordering products, please note that Eighteen B does not warrant that product descriptions are accurate, complete, reliable, current, or error-free, or that product packaging depicted on the Website will match the actual product that you receive. If a product described on the Website is not as described when you receive it, or the packaging on the Website does not match the product you receive, your sole remedy is to return it to us in an unused and undamaged condition in accordance with our Return Policy, which is listed on the Website under FAQs. Eighteen B’s descriptions of, or references to, products not owned by Eighteen B do not imply endorsement of that product, or constitute a warranty by Eighteen B.
Please be aware that prices, availability and other purchase terms are subject to change without prior notice. We make every effort to ensure the accuracy of the information on the Website and to correct errors once discovered. Eighteen B reserves the right to revoke any stated offer to correct any errors, inaccuracies, or omissions, including after an order has been submitted, after it has been confirmed, or after your credit card has been charged. If we discover an error has occurred after your credit card has been charged and your order is canceled as a result of the error, your credit card will be refunded the full amount of your order.
If you order a product, payment must be received by Eighteen B prior to Eighteen B’s acceptance of the order. Eighteen B may require additional information regarding your order if you have not provided all of the information required, and may cancel or limit an order any time after it has been placed. Your order is expressly conditioned on acceptance of this Agreement. Once a properly completed order, your authorization and a form of payment has been received, we will promptly locate the item(s) you have ordered to place them in line for shipment. All items are subject to availability. We will promptly inform you if the product(s) you have ordered are not available and we may offer you alternative product(s) of equal quality and value.
Eighteen B does not accept orders from dealers, wholesalers, or customers who intend to resell items offered on the Website. If Eighteen B discovers that you are placing orders with the intent to resell items offered on the Website, we will immediately cancel your order, suspend or terminate your account, and pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as purchasing products through the use of fake or stolen cards, Eighteen B reserves the right to report you to federal, state and/or local enforcements authorities.
Eighteen B will add applicable shipping and handling fees to your order. Unless otherwise noted, Eighteen B will use commercially reasonable efforts to ship products within a reasonable time after receipt of your properly completed order. Although Eighteen B may provide delivery or shipment timeframes or dates, you understand that those are Eighteen B’s good-faith estimates and may be subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery, in which case the products will be delivered when they become available. If your order will be delayed (either from the date specified at the time of order or, if no date was specified, beyond 30 days from the date of your order). Eighteen B will use reasonable good faith efforts to contact you. If Eighteen B cannot contact you or you no longer wish to receive the item, Eighteen B will cancel the order and promptly refund the amount tendered, and will do so within 7 business days if made using third-party credit card, such as a Visa or MasterCard. Eighteen B shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery. All items purchased from the Website are delivered to shipment carriers. The risk of loss and title for such items pass to you upon our delivery to the carrier. Eighteen B may reject orders where the stated delivery address is outside the United States.
In the United States, Eighteen B is required to collect applicable state and local sales tax on orders shipped to certain states. Taxes apply to most merchandise, but some states exclude certain items, like food products. Some taxing authorities also require the taxable amount to include any shipping and handling charges, while others charge sales tax only on merchandise. Eighteen B is required to follow the rules of each state. Your final order total will include the appropriate state and local taxes. Qualifying States: CA, CO, IA, LA, NC, OH, and PA.
In ordering products through the Website, by telephone, or otherwise, you agree to provide only true, accurate, current, and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or for which you are authorized to provide. Eighteen B shall have the right to cancel your order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to Eighteen B, or for any other reason that we, in our sole discretion, deem appropriate. You agree that your placement of an electronic order on the Website is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
Eighteen B does not directly sell certain Eighteen B products in any jurisdiction other than the United States of America, as these products may not be approved for sale in other jurisdictions. While Eighteen B may choose to accept orders for the purchase of its products from non-U.S. residents, the acceptance of such orders and the sale of such products will be subject to the following conditions:
(a) You agree that the purchase of any Eighteen B products by you, as a non-U.S. resident, shall be (i) ex works Eighteen B’s facilities in the United States per Incoterms 2010, with all title risk and loss in the products passing to you in the United States; and (ii) for your own personal use only and not for further resale or distribution in any manner;
(b) You agree not to order more than a ninety (90) day supply of any consumable products within any ninety (90) day period;
(c) You hereby expressly authorize and direct Eighteen B to load and ship the purchased products to your shipping address, and to contract on your behalf with a courier company for that purpose; and
(d) You are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties and import requirements from Eighteen B’s facilities in the United States to your foreign shipping address.
You are obligated to provide current, complete, and accurate information for your billing account. You are responsible for promptly updating all information to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number, or credit card expiration date). You must promptly notify us if your credit card information is cancelled or is no longer valid (e.g., loss or theft). Changes to such information can be made by calling a Eighteen B representative at the telephone number listed on the Website under Contact Us. You may return items in accordance with the Return Policy instructions that accompany your product shipments or, if you are uncertain about your right to return the product, you may also email us at firstname.lastname@example.org
. Eighteen B will refund your payment when your product is timely returned or cancelled, and within 7 business days of our receipt of the returned product if purchased using third-party credit, such as a Visa or MasterCard.
The information communicated on the Website constitutes an electronic communication. When you communicate with Eighteen B through the Website or via other forms of electronic media, such as e-mail, or social media, you are communicating with Eighteen B electronically. You agree that Eighteen B may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that Eighteen B provides to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication (e.g., by Eighteen B or you).
You further acknowledge and agree that by clicking on the button labeled "SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links as may be designated by Eighteen B, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement and any hyperlinks contained herein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE OR SERVICES OFFERED BY COMPANY. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
You acknowledge that telephone calls to or from Eighteen B are monitored and recorded and you agree to such monitoring and recording.
You verify that any contact information provided to Eighteen B, including, but not limited to, your mailing address, shipping address, e-mail address, residential phone number, and mobile phone number is true and accurate. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to Eighteen B. You acknowledge that by voluntarily providing your telephone numbers to Eighteen B, you expressly agree to be contacted at the telephone numbers you provide.
You consent to receive e-mails, pre-recorded voice messages and/or autodialed calls (including text messages) by or on behalf of Eighteen B relating to this Agreement, any purchase or transaction with Eighteen B, matters related to your account (including debt collection), and promotions regarding Eighteen B’s products. These communications may be made by or on behalf of Eighteen B, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these calls by your telephone carrier and that Eighteen B will not be responsible for these charges.
Eighteen B may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing or shipping addresses and phone numbers provided by you directly or obtained through other lawful means, such as skip tracing. You agree to provide Eighteen B notice within 30 days of any change to your contact information. Your consent to this communications provision is not required to make any purchase with Eighteen B.
You will indemnify and hold harmless Eighteen B and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Website, or (ii) your violation of this Agreement.
Limitation of Liability
NEITHER EIGHTEEN B NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EIGHTEEN B 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. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL EIGHTEEN B’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS YOU HAVE PAID TO EIGHTEEN B CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO EIGHTEEN B, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EIGHTEEN B AND YOU.
Eighteen B, Eigtheen B Scientifically Designed Skincare and b-silk are trademarks of Eighteen B. All other trademarks and service marks displayed on the Website are the property of Eighteen B. You may not use or display any trademarks or service marks owned by Eighteen B without Eighteen B’s prior written consent.
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Eighteen B agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Website (collectively, “Disputes”) will be settled by binding arbitration. Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Eighteen B with written notice of your desire to do so by email or regular mail at 5858 Horton St., Suite 400, Emeryville CA 94608 within thirty (30) days following the date you first agree to this Agreement (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Eighteen B with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute. If you timely provide Eighteen B with an Arbitration Opt-out Notice, then the exclusive jurisdiction and venue will be the state and federal courts located in Delaware and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Eighteen B with an Arbitration Opt-out Notice, you acknowledge and agree that you and Eighteen B are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Eighteen B otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.
The arbitration will be administered by the American Arbitration Association (“AAA
”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules
”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/Rules
or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration
.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Eighteen B otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Eighteen B submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Eighteen B will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Eighteen B will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification” section above, if Eighteen B changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to email@example.com
) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Eighteen B’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Eighteen B in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
This Agreement constitute the entire and exclusive understanding and agreement between Eighteen B and you regarding the Website, and this Agreement supersede and replace any and all prior oral or written understandings or agreements between Eighteen B and you regarding the Website. If any provision of this Agreement is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. You may not assign or transfer this Agreement, by operation of law or otherwise, without Eighteen B’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. Eighteen B may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Eighteen B under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Website. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Eighteen B’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Eighteen B. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
If you have any questions about this Agreement or the Website, please contact Eighteen B:
Mail: Eighteen B, LLC, 5858 Horton St., Suite 400, Emeryville, CA 94608