Sales Information
Elavonne products are sold at exclusive shops and online locations. Online, Elavonne may be purchased on Amazon.com (Amazon store), or at https://OrganicBeautyandSkin.com.
Terms of Use and Site Policies
Welcome to the Elavonne® website located at www.OrganicBeautyandSkin.com (the “Site”). The Site is an Internet property of IntuaBrands, INC (“Elavonne®,” “we,” “our” or “us”). You agree to the following Terms of Use (“Terms of Use”), in their entirety, when you: (a) access or use the Site; (b) access and/or download any of the text, Product (as defined below) reviews, testimonials, audio, video, photographs, graphics, artwork and/or other content featured on the Site including, without limitation, the Diets (as defined below) and “Skin Consultation” (collectively, “Content”); (c) register for an account (“Account”) that enables you to: (i) receive the email newsletter (“Newsletter”), which contains updates and promotions associated with various Elavonne® products and/or services (collectively, the “Products”); (ii) where available, purchase Elavonne® Gift Cards (“Gift Cards”); and/or (iii) purchase Products and/or books on the Site; (d) access links to Elavonne’s® social media pages/accounts on third party social media websites, such as Facebook®, Google+®, Instagram®, LinkedIn®, Pinterest®, Twitter® and YouTube® (collectively, “Social Media Pages”); (e) register for the Elavonne® Affiliate Program (which is subject to the Commission Junction Affiliate Terms and/or the eBay Partner Network Terms) (“Affiliate Program”); and/or (f) utilize the Site’s many interactive features designed to facilitate interaction between you, Elavonne® and other Site users including, but not limited to, blogs, comment sections, Product reviews and question and answer options located in designated areas of the Site (collectively, the “Interactive Forums” and together with the Site, Content, Accounts, Gift Cards, Newsletter, Products, Social Media Pages and Affiliate Program, the “Elavonne® Offerings”).
The Elavonne® Privacy Policy (“Privacy Policy”), Elavonne® Returns and Exchange policy (“Returns and Exchange Policy”) and any and all other applicable operating rules, policies and other supplemental terms and conditions or documents that may be published from time to time on the Site or otherwise, are expressly incorporated herein by reference (collectively, the “Agreement”). Please review the Agreement carefully. If you do not agree to the terms and conditions contained within the Agreement in its entirety, you are not authorized to use the Elavonne® Offerings in any manner or form whatsoever.
Facebook® and Instagram® are registered trademarks of Facebook, Inc. (“Facebook”). Google+® is a registered trademark of Google, Inc. (“Google”). LinkedIn® is a registered trademark of LinkedIn Corporation (“LinkedIn”). Pinterest® is a registered trademark of Pinterest, Inc. (“Pinterest”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). YouTube® is a registered trademark of Google. Please be advised that Elavonne® is not in any way affiliated with Facebook, Google, LinkedIn, Pinterest or Twitter, and the Elavonne® Offerings are not endorsed, administered or sponsored by any of those parties.
MEDICAL DISCLAIMERS
The Content, statements, Products and other material made available by and through the Elavonne® Offerings: (a) are not intended to diagnose, treat, cure or prevent any medical condition or disease; (b) are not in any way intended as medical advice or as a substitute for medical advice and/or medical treatment; and (c) should only be used in conjunction with the guidance and care of your physician. You should always consult with your physician or other healthcare professional before adopting any treatment for a health problem, whether offered on the Site or otherwise. Your physician should allow for proper follow-up visits and individualize your treatment plan as appropriate. If you have or suspect that you have a medical problem, promptly contact your health care provider. Never disregard professional medical advice or delay in seeking professional advice because of something that you have read on the Site or in connection with the Elavonne® Offerings.
Without limiting the foregoing, Content that contains recipes, cooking tips, healthy meal recommendations, dietary advice and/or other similar material made available by and through and/or in connection with the Site (collectively, the “Diets”) may include ingredients that you are allergic to. You should always check the ingredients in any recipe included in the Diets to avoid potential allergic reactions. If you have or suspect that you have an allergic reaction or other adverse health event, promptly contact your health care provider.
The Diets and other information presented in connection with the Elavonne® Offerings and/or Site are in no way intended as medical advice or as a substitute for same. This information should only be used in conjunction with the guidance and care of your physician. Consult your physician before beginning any diet or nutrition plan featured in connection with the Diets. Your physician should allow for proper follow-up visits and individualize your diet and/or nutrition plan as appropriate. Always seek the advice of your physician or other qualified health care provider if you have any questions regarding a medical condition, your diet, nutrition plan or any other matter related to your health and well-being.
SCOPE OF AGREEMENT
You agree to the terms and conditions outlined in the Agreement with respect to your use of the Elavonne® Offerings. The Agreement constitutes the entire and only agreement between you and Elavonne® with respect to your use of the Elavonne® Offerings and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. Unless explicitly stated otherwise, any future offer(s) or product(s) made available to you on the Site that augment(s) or otherwise enhance(s) the current features of the Elavonne® Offerings shall be subject to the Agreement. You understand and agree that Elavonne® is not responsible or liable in any manner whatsoever for your inability to use the Elavonne® Offerings.
MODIFICATION OF AGREEMENT
We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Elavonne® Offerings. By your continued use of any of the Elavonne® Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
REQUIREMENTS
The Elavonne® Offerings are available only to individuals: (a) who can enter into legally binding contracts under applicable law; and (b) who are over eighteen (18) years of age (or the applicable age of majority in your jurisdiction, if greater than eighteen (18) years of age) (collectively, the “Eligibility Requirements”). If you do not satisfy the Eligibility Requirements in their entirety, you do not have permission to use and/or access the Elavonne® Offerings.
SITE FORMS / YOUR ACCOUNT
In order to purchase Products, utilize the Interactive Forums and/or access certain other Elavonne® Offerings, you may be required to open an Account, or register to make a comment, by submitting a registration form or other data submit form (collectively, “Form”). The information that you must supply on the Form may include, without limitation: (a) your name; (b) your mailing address (and billing address where purchasing Products, Gift Cards or other Elavonne® Offerings); (c) your e-mail address; (d) your daytime and evening telephone numbers; (e) your credit/debit card information (where purchasing Products, Gift Cards or other Elavonne® Offerings with a credit/debit card); (f) your password; and/or (g) any other information requested by us on the Form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain your Account in up to date and accurate fashion.
Elavonne® may reject your Form and/or terminate your Account at any time and for any reason, in its sole discretion. Such reasons may include, without limitation: (i) where Elavonne® believes that you are in any way in breach of the Agreement; (ii) where Elavonne® believes that you are engaged in any improper conduct in connection with the Elavonne® Offerings; and/or (iii) where Elavonne® believes that you are, at any time, conducting any unauthorized commercial activity by and through your use of the Elavonne® Offerings.
You are responsible for maintaining the confidentiality of your Account and password and for restricting access to same. You agree to accept responsibility for all activities that occur by and through your Account including, without limitation, any purchases made therethrough. If you are accessing and using the Elavonne® Offerings on someone else’s behalf, you represent and warrant that you have the authority to bind that person as a principal to the Agreement, and you agree to accept liability for any and all harm caused by that person’s wrongful use of the Elavonne® Offerings.
PRODUCT DESCRIPTIONS
Elavonne® attempts to be as accurate as possible when describing its Products. However, Elavonne® does not warrant that Product descriptions (or other Content contained on the Site) are accurate, complete, reliable, current or error free. If a Product offered by Elavonne® is not as described, your sole remedy is to return it in unused condition, subject to our Returns and Exchange Policy, which can be found Here. We have made every effort to display as accurately as possible the colors of our Products that appear on the Site. However, as the actual colors you see will depend on your monitor/screen and other factors associated with your computer, mobile device or other device used to access the Site, we cannot guarantee that the depiction of any color as viewed by you through your monitor/screen will be accurate.
TESTIMONIALS/REVIEWS
From time-to-time, Elavonne® may permit end-users to submit reviews and testimonials regarding certain of the Elavonne® Offerings, as well as biographical material associated with such end-users (collectively “Testimonials”), by and through the Site or otherwise. By submitting a Testimonial, you irrevocably grant to Elavonne® the right to use the Testimonial in any and all forms of marketing and promotional material, whether now known or hereinafter developed, including, without limitation, website publication, print advertisements (“ads”), online ads, television ads, radio ads, interactive media, as well as printed extracts and reproductions of any portion thereof, and for any and all other uses. You certify to Elavonne® that everything you stated in the Testimonial is true and an expression of your personal belief. You acknowledge and agree that: (a) at no time did Elavonne® provide you with any consultation, advice or guidance with respect to the substance of the Testimonial; (b) you are not an employee, officer or director of Elavonne®; (c) you are not an immediate family member of an employee, officer or director of Elavonne®; and (c) you are not living in the same household with an employee, officer or director of Elavonne®.
You understand and agree that the Testimonial, in whole or in part, may be edited and/or dramatized, and that any part of the Testimonial may be used without compensation to you. You agree that no ad or other material incorporating or making reference to the Testimonial need be submitted to you for approval. Elavonne® shall be without liability to you whatsoever for any distortion or illusionary effect resulting from its publication of the Testimonial. You expressly release Elavonne® from any and all claims that you have or may have for breach of right of publicity, invasion of privacy, defamation, copyright infringement or any other claim or cause of action arising out of or in connection with any production, distribution, duplication, broadcast, exhibition, publication, ad or promotion utilizing or incorporating the Testimonial, or any other use of the Testimonial whatsoever. You acknowledge and agree that Elavonne® shall not be liable for any causes of action or claims related to your decision to provide the Testimonial to Elavonne®.
DISCLAIMER OF WARRANTIES
THE Elavonne® OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, Elavonne® MAKES NO WARRANTY THAT THE Elavonne® OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY SPECIFIC DIETARY BENEFIT, WEIGHT LOSS, BEAUTY BENEFIT OR OTHER HEALTH-RELATED OUTCOME; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE Elavonne® OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Elavonne® WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE Elavonne® OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Elavonne® OR OTHERWISE THROUGH OR FROM THE Elavonne® OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. WITHOUT LIMITING THE FOREGOING, Elavonne® DOES NOT ENDORSE USER CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY USER CONTENT OR COLLABORATIVE CONTENT OBTAINED BY OR THROUGH THE Elavonne® OFFERINGS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Elavonne® SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Elavonne® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE Elavonne® OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE Elavonne® OFFERINGS; (C) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA; (D) THE FAILURE TO REALIZE ANY SPECIFIC DIETARY BENEFIT, WEIGHT LOSS, BEAUTY BENEFIT OR OTHER HEALTH-RELATED OUTCOME; AND/OR (E) ANY OTHER MATTER RELATING TO THE Elavonne® OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. YOU HEREBY RELEASE Elavonne® FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF Elavonne® TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE AS SET FORTH IN THE DISPUTE RESOLUTION PROVISIONS OF THESE TERMS OF USE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF YOUR USE OF THE Elavonne® OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME, MAY BE BROUGHT BY YOU OR Elavonne® MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE SUBJECT CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND Elavonne®. ACCESS TO THE Elavonne® OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF Elavonne® SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
PROPRIETARY RIGHTS, TRADEMARKS & COPYRIGHTS
You agree that the Elavonne® Offerings and any and all Content made available in connection therewith, and its compilation, including, but not limited to, source and object code, trademarks, service marks, trade names, graphics, images, text, audio clips, button icons, digital downloads, data compilations and computer software, are the sole property of Elavonne® or its partners, suppliers or licensors, and protected by United States, and international, copyright laws. All software used on the Site is the property of Elavonne® or its software suppliers or licensors and protected by United States, and international, copyright laws. Users are granted permission to browse and use the Elavonne® Offerings for their intended purpose only, which is for retail use only as a consumer. Any other use or exploitation including, but not limited to, the reproduction, duplication, modification, distribution, sale, transmission, republication, removal, deletion, addition, framing, display or performance of the Elavonne® Offerings, in part or in whole, is strictly prohibited. Except as expressly authorized in writing, the use or misuse of any trademarks, service marks, trade names, logos, text, images, graphics, intellectual property or content associated with the Elavonne® Offerings is strictly prohibited.
Elavonne® does not grant, by implication or otherwise, any license or right to use any trademark, service mark, trade name or logo, the Elavonne® Offerings and/or the Content displayed by and through the Elavonne® Offerings, without the prior written consent of Elavonne®. Elavonne® prohibits use of the “” name and/or logo or other proprietary graphic or trademark as a link to any third party website unless creating such a link is approved in advance by Elavonne® in writing. Registered and unregistered proprietary information is owned and held by Elavonne® and its licensors and therefore, you may be liable for infringement or misappropriation or other legal action to the fullest extent of the law if you misuse the Site in any manner.
“,” is a trademark, registered trademarks and/or trade dress of IntuaBrands INC in the United States and/or all other countries. Elavonne’s® trademarks and trade dress may not be used in connection with any product or service that is not Elavonne’s®, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Elavonne®. All other trademarks not owned by Elavonne® that appear on or through the Elavonne® Offerings are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by Elavonne®.
THIRD PARTY WEBSITES
Elavonne® encourages you to exercise discretion when browsing the Internet. The Site and other Elavonne® Offerings may direct you to third party websites containing information that some people may find offensive or inappropriate. Any such link is provided solely as a convenience to you. Elavonne® and its affiliates make no representation or warranty concerning the legality of any third party website. Any such website is independent from Elavonne®, and Elavonne® has no control over, or responsibility with respect to, the information provided or activities undertaken by any such website. A link between Elavonne® and another website does not mean that Elavonne® endorses, recommends, sponsors or approves of that website. Linking to off-site pages is done at your own risk, requiring you to make your own independent decisions regarding your interactions or communications with any other website. Any dealings with, or participation in promotions offered by, any third parties (including advertisers on the Site), including the payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the applicable advertiser or other third party. Elavonne® expressly disclaims any responsibility or liability for any damage, loss, or injury arising out of the activities of any third party, the goods or services offered or the content displayed by any such third party not under the Elavonne® domain.
USE RESTRICTIONS
The Elavonne® Offerings are made available for your personal, non-commercial use only. You agree that you will not use the Elavonne® Offerings: (a) for any commercial or political purpose including, but not limited to, advertising, soliciting funds, collecting product prices or selling products; (b) to monitor, gather, scrape or copy Content, user data or other material made available by and through the Elavonne® Offerings by using any robot, “bot,” spider, crawler, spyware, engine, device, software, extraction tool or any other automatic device, utility or manual process of any kind; (c) to frame or utilize framing techniques to enclose any trademark or other proprietary information including, but not limited to, any Content, images, text or page layout; (d) in connection with any metatags or any other “hidden text” utilizing Elavonne’s® name or any of its trademarks; and/or (e) to engage in any activity that interferes with an end-user’s access to, or the proper functioning of, the Site or other Elavonne® Offerings. Without limiting the foregoing, you may not modify, reproduce, duplicate, copy, distribute, sell, resell, publish, license, visit or otherwise exploit any portion of the Elavonne® Offerings for any commercial purpose. You also agree that in using the Elavonne® Offerings, you will not impersonate any person or entity.
TERMINATION OF YOUR ACCESS TO THE Elavonne® OFFERINGS
You agree that any unauthorized use of Elavonne® Offerings and associated intellectual property or any fraudulent, abusive or otherwise illegal activity shall be grounds for termination of your right to access, browse and use the Elavonne® Offerings. Without limiting the foregoing, Elavonne® reserves the right to terminate or suspend your access to the Elavonne® Offerings at any time for any reason, with or without notice at Elavonne’s® sole discretion.
COPYRIGHT POLICY / DMCA COMPLIANCE
Elavonne® reserves the right to terminate the Account of any customer/end-user who infringes upon third-party copyrights. If you believe that a copyrighted work has been copied and/or posted via the Site and/or other Elavonne® Offerings in a way that constitutes copyright infringement, you should provide Elavonne® with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location on the Site (or other Elavonne® Offerings) of the copyrighted work that you claim has been infringed upon; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Elavonne’s® Copyright Agent for notice of claims of copyright infringement is as follows:
INTUABRANDS INC
31103 RANCHO VIEJO ROAD D2537
SAN JUAN CAPISTRANO, CA 92675
REVISIONS / TERMINATION
Elavonne® may, in its sole discretion, and with or without notice to you, make changes to, or discontinue, any aspect of the Elavonne® Offerings including, without limitation, any Content, Products, services or prices made available by and through same. Elavonne® shall not be liable to you or any third party should it exercise this right to modify or discontinue any portion of the Elavonne® Offerings.
ELECTRONIC COMMUNICATIONS
When you visit the Site or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
USE OF USER DATA
All materials that you submit through or in association with the Elavonne® Offerings including, without limitation, the Registration Data and Testimonials, shall be subject to the Privacy Policy. For a copy of the Privacy Policy, please Click Here. Elavonne® does not accept unsolicited ideas, works or other materials and you acknowledge that you are responsible for, and bear all risk as to the use or distribution of, any such ideas, works and/or materials.
INDEMNITY
You agree to indemnify and hold harmless Elavonne®, its subsidiaries, parents and affiliates, and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by Elavonne® in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (a) your breach of the Agreement; (b) your Feedback; (c) any violation of applicable laws, rules or regulations; and/or (d) any use by you of the Elavonne® Offerings, or use of the Elavonne® Offerings by a third party by and through an Account or computer owned by you. You agree to cooperate as fully as reasonably required in the defense of any associated claim, suit, action, proceeding, governmental investigation or enforcement action, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. The provisions of this Section are for the benefit of Elavonne®, its parents, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
DISPUTE RESOLUTION PROVISIONS
In any action or proceeding to enforce rights under the Agreement, Elavonne® will be entitled to recover costs and attorneys’ fees if it substantially prevails. The Agreement shall be treated as though it were executed and performed in the State of California, and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles). Where there is a dispute between Elavonne® and you arising out of or related to the Elavonne® Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto (including the manner in which Elavonne® contacts you): (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute, you can submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Elavonne® and/or its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that Elavonne® incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. You may opt-out of these Dispute Resolution Provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.
YOUR REPRESENTATIONS
You represent and warrant that you: (a) are eighteen (18) years of age (or the applicable age of majority in your jurisdiction, if greater than eighteen (18) years of age) or older; (b) are not under any legal or other disability which limits your ability to comply with these terms and conditions; (c) will not infringe upon any third party’s proprietary and/or intellectual property rights in connection with the Elavonne® Offerings; and (d) will comply with all applicable laws, rules and regulations in connection with the Elavonne® Offerings.
MISCELLANEOUS
The failure of either party to exercise, in any respect, any right provided for hereunder will not be deemed a waiver of any further rights hereunder. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect.
No agency, partnership, joint venture or employment relationship is created as a result of the Agreement and you do not have any authority of any kind to bind Elavonne® in any respect whatsoever.
Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.
Other than for payment obligations arising hereunder, neither party will be liable for, or will be considered to be in breach of, the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, telecommunications, Internet or network failure, results of vandalism or computer hacking, fire, storm or other natural occurrences, any conflicting order, direction, action or request of the federal, state and/or local governments or of any regulatory department, agency, commission, court or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, wars, strikes, work stoppages or other such labor difficulties), the affected party will give prompt written notice to the other parties and will use commercially reasonable efforts to minimize the impact of such event. Notwithstanding the foregoing, the parties’ obligations to one another shall be excused and/or postponed during and only for the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended.
You may not assign the Agreement or your rights and obligations thereunder to any third party without the prior express written approval of Elavonne®. Elavonne® may assign the Agreement and/or its rights and obligations hereunder to any third party, without your prior written consent. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, administrators, successors and permitted assigns.
CONTACT US
If you have any questions about the Agreement, Elavonne® Offerings or the practices of Elavonne®, please feel free to contact us via U.S. mail at: Elavonne c/o INTUABRANDS, INC, 31103 Rancho Viejo Road D2537, San Juan Capistrano, CA 92675; call us at: (866) 465-8584; or e-mail us at: service@elavonne.com.