TERMS AND CONDITIONS OF USE AGREEMENT WITH MELAGE BEAUTY, LLC
Effective as of November 1, 2022
This Terms and Conditions of Use Agreement constitutes a legally binding agreement ("Agreement") between you, whether personally or on behalf of an entity, and Melage Beauty, LLC, a North Carolina Limited Liability Company (“Melage Beauty”, Company”, “us”, “we”, and “our”), governing your (“Vendor”) access to and use of the melagebeauty.com online marketplace, including any subdomains, websites, media form, media channel, mobile website, applications, and any application program interfaces through which Melage Beauty makes its services available, (collectively, the "Marketplace").
This agreement sets out your rights and responsibilities when using melagebeauty.com or when using any other services provided by Melage Beauty (collectively, “services”). By using any of our services you are agreeing to have read, understood and agree to be bound by all the terms and conditions within. If you do not agree with all the terms and conditions within, you are expressly prohibited from using the Marketplace, and should immediately discontinue use.
Melage Beauty reserves the right to make changes or modifications to these Terms and Conditions at its discretion, at any time. Any changes posted on the Marketplace are incorporated herein by reference. Therefore, it is important to periodically review these Terms and Conditions to stay informed of updates, for you will be subject to, and deemed to be made aware of and have accepted all revisions of this Agreement based on your continued use.
Melage Beauty is a marketplace facilitator that operates an online marketplace promoting the sale of beauty and cosmetic products created by minority-owned businesses (collectively, “Business Activities”). As a vendor you own and/or operate a minority-owned business and desire to list your products for sale on the Marketplace, pending Company’s discretionary approval and subject to the terms of this Agreement. In consideration of the mutual covenants, representations, and promises contained within, the receipt and sufficiency of which are acknowledged, the Parties agree to the following:
1. General Overview. Melage Beauty is an online multi-vendor marketplace where minority beauty entrepreneurs sell beauty and cosmetic products directly to customers. We provide a space for independent vendors to sell their products, therefore they operate their own shops, determine their policies and are responsible for managing their inventory, shipments and adhering to all legal applicable legal requirements. Melage Beauty does not manufacture goods, hold inventory, determine prices or ship sold goods on any vendor’s behalf. Further, Vendors are not employees, agents or representatives of Melage Beauty.
2. Products Allowed to be Sold on Melage Beauty. Melage Beauty is a marketplace that makes it easy for customers to find everything they need to meet their cosmetic and beauty needs in one location. Therefore, everything listed for sale on Melage Beauty must be beauty or cosmetics related. This includes:
- Hair Products. For example, but not limited to, shampoo, conditioners, and moisturizers.
- Skincare Products. For example, but not limited to, cleansers, toners, and masks.
- Makeup Products. For example, but not limited to, foundation, lipstick, and eyeshadow.
- Bath & Body Products. For example, but not limited to, body lotions, bath bombs, and hand & foot care.
- Nail care products. For example, but not limited to, nail polish, foot scrub, manicure, and pedicure tools.
- Fragrances. For example, but not limited to, men and women's perfume.
- Tools & Accessories. For example, but not limited to, makeup brushes, facial rollers, and headbands.
C. Products Not Allowed to be Sold on Melage Beauty. The following products cannot be sold on the Melage Beauty marketplace unless you receive written consent from Melage Beauty:
- Clothing or Shoes.
- Food or Beverages.
- Products with anti-hate speech. We do not allow items or listings that promote, support, or glorify hatred toward people or otherwise demean people based upon race, ethnicity, national origin, religion, gender, gender identity, disability, or sexual orientation (collectively, “protected groups”). We also prohibit items or content that promote hate groups, organizations, or people with such views. Examples of hate groups include Nazi or Neo-Nazi groups, Ku Klux Klan (KKK) groups, white supremacist groups, misogynist groups, or groups that advocate anti-gay, anti-immigrant, or Holocaust denial agendas. Also, items that contain racial slurs or derogatory terms in reference to protected groups.
- Products that make medical claims not approved by the FDA. If you make claims about the purported health benefits of an item for sale on the Marketplace, we encourage you to speak with a qualified expert about which regulations apply to you. It is your responsibility to know and comply with all laws and regulations that apply to the items you sell and the claims that you make in advertising those items.
- Drugs, drug paraphernalia, and intoxicants. Substances that are considered controlled substances under applicable law are prohibited. The ban also includes substances that have or are claimed to have an intoxicating effect.
- Hazardous Materials and Weapons. This includes, but is not limited to, explosives, flammable items, gases, radioactive material, and toxic substances.
- Recalled items or items that could potentially cause an unreasonable risk of harm. Items that have been recalled by any government entity or agency, or manufacturers, are prohibited from being sold on the Marketplace.
- Illegal items or items promoting illegal activity. Illegal items and items that promote illegal activity, including counterfeit or stolen items, are not allowed on the Marketplace. All forms of illegal activity are strictly prohibited. Further, listings may not facilitate or promote illegal acts. If you believe that an exception should be granted for a product, or if you are unclear as to whether your products falls into the acceptable product list, contact Melage Beauty at email@example.com
D. Internationally regulated items. If you buy or sell an item from another country, or if you enter into a transaction with someone across international borders, you are responsible for complying with all laws and regulations of the country of origin, country of destination, as well as your local laws. You may be prohibited from exporting or importing certain items under international laws and regulations. Additionally, some transactions may require licenses, permits, or other documentation. If you have questions about how to comply with the law, we recommend that you speak to an attorney or qualified professional.
E. Reselling. You are not allowed to resell items on the Marketplace. Reselling refers to listing an item that is owned by another company. Items not made or designed by a vendor that is a member of the Melage Beauty community is only allowed if you have partnered with the original creator and there is proof of an agreement made between you and the other supplier. In this case, the agreement must be provided to Melage Beauty prior to being listed on the Marketplace.
F. Prohibited Conduct. By accessing the Marketplace as a Vendor, you are prohibited from doing the following:
- Third-Party Links. Vendor is prohibited from displaying links that direct users to a site other than the Marketplace, except when linking to legally required information. Permitted links cannot direct users to pages that encourage people to view, search, or purchase items off the Marketplace.
- Data Usage. Vendor is prohibited from retrieving data or other content from the Marketplace, including but not limited to the Vendor Dashboard, to create or compile, directly or indirectly, a collection, compilation, or directory without written consent from Melage Beauty. This includes using usernames, email addresses and mailing addresses of customers of for the purpose of sending solicited or unsolicited mailings.
- Mislead or Misrepresent Vendor’s Product. Vendor is prohibited from using the Marketplace under false pretenses, such as to trick, defraud or mislead customers, Vendors or Melage Beauty.
- Automated Systems. Vendor is prohibited from using automated systems, such as scripts, to send comments or messages, or use data gathering and extraction tools, such as but not limited to data mining tools or robots.
- Sell or Transfer a Profile. Vendor’s business profile and usage of the vendor dashboard is to be exclusively used by the business listed and its staff. You are prohibited from selling or transferring your profile and access to the Marketplace to a third-party.
- Circumvent Access. Vendor is prohibited from trying to bypass, or attempt to bypass, any measures of the site designed to prevent or restrict access to the Marketplace, or any portion of the site that you are not entitled access to.
- Software Interference. Vendor is prohibited from uploading or transmitting, or attempting to upload or transmit, viruses, Trojan horses, or other material, including excessive use of capital letters and spamming, that interferes with anyone’s uninterrupted use and enjoyment of the Marketplace, or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the site.
- Tracking devices. Vendor is prohibited from uploading or transmitting, or attempting to upload or transmit, any material that acts as a passive or active mechanism used to collect or transfer information, including but not limited to, clear graphics interchange formats (clear gifs), 1×1 pixels, web bugs, cookies, or other similar devices, sometimes referred to as spyware, passive collection mechanisms, or PCMs.
- Unauthorized Software. Vendor is prohibited from using, launching, developing, or distributing any automated system, including but not limited to, any spider, robot, cheat utility, scraper, or offline reader on the Marketplace, or use or launch any unauthorized script or software, with exception to standard search engine or Internet browser usage.
G. Shop Management Requirements.
- Melage Beauty is a marketplace facilitator, meaning that Vendor fully and completely manages Vendor’s own shop.
- Vendor must provide honest and accurate information about Vendor’s company and products.
- Vendor is solely responsible for all costs, including but not limited to, Stripe credit card processing fees, shipping fees, return fees, and other fees associated with processing customer transactions.
- Vendor is solely responsible for damages associated with shipped items and will replace, at its sole cost, any incorrect or defective items per customer's request.
- Vendor must price goods listed on the Marketplace at retail-value or lower. Retail-value is determined by the before-sale price of a good sold at other online or brick-and-mortar retail locations. However, Vendor may price items greater than retail-value if Vendor is offering free-shipping, and the increased price is used to offset the cost of shipping fees. The increase must be no greater than the retail cost plus the cost to ship.
- Vendor determines its own refund policy, and must clearly outline the policy on its shop's page. Therefore, we encourage all customers to settle refund issues with Vendor. However, if it is determined by Melage Beauty that a refund is warranted due to a defective, misleading, fraudulent, or not-received product, Melage Beauty may issue a refund on Vendor's behalf. Prior to doing so, Melage Beauty will investigate the matter and give Vendor an opportunity to deny the refund request. If it is found that a refund is warranted, the refunded amount will be deducted from Vendor's account. If there are no funds in Vendor's account, Vendor's account will show a negative balance, and the amount will be withdrawn from the bank account Vendor has on file, and a written explanation will be provided.
- If Vendor is unable to complete an order, Vendor must notify the customer no later than 48 hours of receiving the order, but preferably within 24 hours.
- Vendor must offer stellar customer service and respond to customer complaints and inquiries no later than 48 hours after they are received, but preferably within 24 hours.
- Vendor must communicate with everyone, including customers, fellow vendors and Melage Beauty staff, with respect. Harassing, defamatory, threatening or abusive behavior will not be tolerated, and will result in the termination of your account at the sole discretion of Melage Beauty.
- Vendor’s shop may be closed if it violates these Terms and Conditions after receiving one (1) warning.
H. Truthfully Representing Yourself, Your Business, and Your Offerings. Vendor must always accurately and honestly represent itself, its business, and all products listed for sale on the Marketplace. By listing a product for sale on melagebeauty.com Vendor understands and agrees that it is responsible for complying with all applicable laws and regulations for the products listed for sale, including any required labels and warnings. Melage Beauty assumes no responsibility for the accuracy, labeling, or content of listings. Your shop represents you and your business to the Melage Beauty community. Therefore, your success and the success of the Marketplace is built on the integrity and accuracy of the products that you sell and the benefits of the products you proclaim. By listing any product on the Marketplace, Vendor agrees to abide by the following:
- To accurately and honestly represent Vendor’s business and products with any and all information posted on Vendor’s shop’s page, including but not limited to, product descriptions, ‘policies’ section, ‘about’ section, related photographs and other media.
- To update Vendor’s shop’s product listings, descriptions, pricing, etc., as necessary, in a timely manner.
- To honor the policies posted in your shop’s ‘about’ section.
- To communicate with all customer inquiries received via the Marketplace no later than 48 hours after received, but preferably within 24 hours.
- To not engage in fee avoidance and/or circumvent the policies of the Marketplace in any way by attempting to effectuate any sales of offerings listed on the Marketplace with Marketplace customers outside of the Marketplace.
- To refrain from engaging in deceptive conduct such as, but not limited to, including irrelevant keywords for the purpose of manipulating search results, manipulating clicks, carts or sales, or creating duplicate shops for the purpose of manipulating search results or circumventing Melage Beauty’s policies, within the Marketplace or otherwise. Even if your listings have some material difference, they will be considered duplicate if they appear to be the same item in search results and may be removed by Melage Beauty in our sole discretion, without notice to Vendor.
- To not coordinate pricing or engage in price-fixing with other vendors.
I. Communicating with Others Via the Platform. You may use the Marketplace messaging system to communicate with customers, vendors, and other Marketplace members. Marketplace messaging is a great way to discuss listings without revealing personal contact information. Marketplace communication must not be used for the following activities:
- Sending unsolicited advertising or promotions, requests for donations, or spam.
- Harassing or abusing another member.
- Contacting someone after they have explicitly asked you not to.
- Posting in public areas about other vendors or customers, or contacting another vendor or customer to discuss a dispute or harassment.
- Interfering with a transaction or the business of another member. Especially for the purpose of negatively impacting someone’s business. Examples of prohibited interference include but are not limited to: a) contacting a vendor or customer using Marketplace messaging to warn them away from a particular vendor, shop, or item; b) posting in public areas to demonstrate or discuss a dispute with another vendor or customer; or c) purchasing from a vendor for the sole purpose of leaving a negative review. Any use of Marketplace messaging to harass other users is strictly prohibited.
J. Reviews. Customer reviews are an integral part of the marketplace, as they aide in the decision-making of other customer's purchases. Melage Beauty is a community that champions dialouge with customers and brands, and we want to insure it is a fair and pleasent exprience for both the customer and vendors. Therefore Vendors must abide by the following:
- A customer may leave a review of a Vendor's product if product was purchased from the Melage Beauty Marketplace. If a vendor believes that a review is misleading, fraudulent or harrassing, Melage Beauty will investigate the matter and determine whether the review should be removed.
- Vendor has the ability to review all reviews on the Vendor Dashboard. This includes the review, customer and time submitted.
- Vendor may respond to reviews, however when doing so, must not violate our harrassment and communication clauses.
- Vendor may not respond to a customer's reviews directly with customer to harrass or intimidate, however may use the messaging system to rectify any issues.
- Vendor may not solicite postive reviews by promising payment, products or discounts for positive reivews.
- Any violation of the review restrictions will result in the termination of your Melage Beauty account.
K. Payment Terms and Termination.
- Vendor Subscriptions: Vendor agrees to pay an auto-renewed monthly fee based on one of the following subscription packages: a) Standard: ten dollars ($10), b) Preferred: fifteen dollars ($15), and c) Premium: twenty dollars ($20). The monthly fee will be automatically withdrawn monthly via Stripe. An account with Stripe must be activated using the vendor dashboard prior to displaying product listings on the Marketplace. If a Vendor chooses to downgrade or update its subscription at a later date, the Vendor will be billed for a new Vendor Plan at the conclusion of the current month for which the Vendor has already been billed. All sales are finals and no refunds or prorated fees will be given upon termination, upgrading or downgrading of a Vendor Plan.
- Vendor Sales: When a customer purchases an item off the Marketplace, the Marketplace takes five percent (5%) commission on each sale. Melage Beauty will hold the remaining ninety-five percent (95%) sales revenue until disbursement. The disbursement is paid via Stripe on the 1st of every month, if at least one of the following has occurred: a) the item is designated as “shipped” on the dashboard, or 2) the customer has marked the item(s) as “Received”. Should neither of the aforementioned factors occur, Melage Beauty will automatically disburse the 95% sales revenue after fifteen (15) days from the customer’s purchase.
- Termination: Either Party may terminate this Agreement immediately by providing written notice to the opposite party or canceling their subscription on the Vendor Dashboard. No refund or proration of fees will be given to the Vendor. Upon termination of this Agreement Vendor agrees and acknowledges that Melage Beauty may immediately remove the Vendor’s account data and are not obligated to maintain any records prior or subsequent to the termination event.
L. Vendor Data. As Melage Beauty offers multiple tiers of service to its vendors, the Vendor understands that Melage Beauty will, periodically, need to archive, modify, and/or remove products it deems to be inactive in its sole and absolute discretion.
N. Insurance. When applicable, Vendor agrees to purchase the necessary insurance during the term of this Agreement and upon request must provide proof of such insurance to Melage Beauty. In the instance the Vendor should fail to maintain or provide proof of any legally required insurance, Melage Beauty may terminate this agreement.
- Income Taxes. Vendor is not an employee of Melage Beauty for federal, state or local tax purposes, and the services performed in adherence to this agreement do not create an employee-employer relationship of any kind. Vendor understands that it is solely responsible for paying, its own federal, state and local income taxes on all income received under this agreement, and that Melage Beauty is not withholding or paying any portion of Vendor’s taxes on any payments made. Melage Beauty must provide a Form 1099 for all payments remitted to the Vendor under this Agreement no later than January 31st of the following year.
- Sales Taxes. As a marketplace facilitator, Melage Beauty will calculate, collect, remit and refund state sales taxes on sales sold by Vendor for states where Marketplace Facilitator and/or Marketplace collection legislation is enacted and Melage Beauty meets the threshold requirements to do so.
P. Content, Contriutions & Intellectual Property.
- Contributions posted by Vendor on Marketplace belongs to Vendor and Melage Beauty makes no claim to it. Vendor retains full ownership of all of its contributions and any intellectual property rights or other proprietary rights associated with such. Contributions include but are not limited to, the shop name, shop banner, profile picture, product photographs, product descriptions, reviews, review responses, videos, your name, company name, and franchise name, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. (collectively, “contributions”). By posting such content, Vendor represents and warrants that it has the appropriate rights to all parts of the content posted and is not infringing or violating a third-party’s intellectual property rights. If it is determined that Vendor is violating or infringing on a third-party’s intellectual property rights, the content will be removed or disabled. If there are repeated violations Vendor’s account may be disactivated by Melage Beauty.
- Vendor is solely responsible for its contributions. Melage Beauty is not liable for any legal action that occurs as a result of contributions made to the Marketplace. Vendor agrees to exonerate Melage Beauty from all responsibility and refrain from any legal action regarding contributions Vendor makes to the Marketplace. Melage Beauty has the right, in our sole discretion to do the following: 1) edit, redact or change contributions, 2) re-categorize contributions to place in more appropriate locations within the Marketplace, 3) pre-screen or delete contributions at any time for any reason, all of which may be done without notice to Vendor. The above does create an obligation for Melage Beauty to monitor the content of the Vendor.
- Permission to Use. By posting content on the Marketplace, Vendor grants Melage Beauty a non-exclusive, unrestricted, unlimited, irrevocable, perpetual, transferable, sub-licensable, worldwide, royalty-free, fully paid license to use, copy, display, edit, modify, excerpt, reproduce, distribute, store, host, publish, broadcast, and prepare derivative works of Vendor’s content. The license is to be used for operational and marketing purposes, such as but not limited to, enhancing photos for website banners, placement in local and national advertising, and use on our social media pages. The use and distribution may occur through any media channels in any media formats. Vendor agrees to not assert any moral rights or rights of publicity against Melage Beauty for use of content and warrants that moral rights have not been otherwise asserted in the posting of your content on the Marketplace.
- Melage Beauty Rights. The Marketplace and all of its components are the proprietary property of Melage Beauty, and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the site (collectively, “Content”) and the trademarks, service marks, and logos (collectively, “Marks”) are owned or controlled by Melage Beauty or are licensed to us and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. Except as expressly provided in these Terms and Conditions, no part of the Marketplace and no Content or Marks may be copied, republished, reproduced, uploaded, aggregated, posted, publicly displayed, transmitted, distributed, encoded, translated, sold, licensed, or otherwise used for any commercial purpose whatsoever, without the express prior written consent of Melage Beauty.
Q. The Vendor’s Warranties and Representation. By using the Marketplace, you represent and warrant that:
- You have full authority to execute and perform this Agreement in accordance with its terms; the execution and delivery of this Agreement and the use of the Marketplace as a vendor does not and will not conflict with, result in a breach, violation or default or give rise to an event which, with the giving of notice or after the passage of time, or both, would conflict with or result in a breach, violation or default of any of the terms or provisions or of any indenture, agreement, judgment, decree or other instrument or restriction to which Vendor is a party or by which Vendor may be bound or affected; and no further authorization or approval, whether of governmental bodies or otherwise, is necessary in order to enable the Vendor to enter into and perform this Agreement.
- All registration information submitted is true, accurate, current and complete, and Vendor will maintain the accuracy of such information by promptly updating the registration information as necessary.
- You have the legal capacity to agree with this Terms and Conditions Agreement. You are not a minor in the jurisdiction in which you reside, or, if you are older than thirteen (13) years old, have received parental permission to use this site. Anyone under the age of thirteen (13) is not allowed to to become a Marketplace Vendor.
- You will not access the Marketplace through automated or non-human means, whether through bot, script or otherwise.
- Non-Bona Fide Transactions. The Vendor must not attempt to circumvent Melage Beauty by encouraging or otherwise soliciting business from Melage Beauty customers.
- Binding Agreement. This Agreement constitutes a valid and binding obligation enforceable the Vendor in accordance with its terms.
R. Melage Beauty’s Warranties. Vendor understands that our services are provided “As Is” and without warranty. To the fullest extent permissible according to applicable law, Melage Beauty makes no warranties, express or implied, including but not limited to, the warranties of title, merchantability, non-infringement and fitness for a particular purpose, as well as any implied warranties by a course of performance, course of dealings, usage of trade, or guarantees, representations, promises, statements, estimates, conditions, or other inducements, express, implied, oral, written, or otherwise except as expressly set forth within this Agreement. Melage Beauty does not warrant or guarantee conversion rates, pay-up rates, response rates or ability to convert the responses into sales.
S. Corrections. There may be information on the Marketplace that contains typographical errors, inaccuracies, or omissions that may relate to the website, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
- Vendor must at all times defend, indemnify, and hold harmless Melage Beauty and Melage Beauty’s members, managers, successors, assigns, partners, officers, affiliates, subsidiaries, joint venturers, employees, contractors, and agents (collectively, “Indemnified Parties”) from and against any and all liabilities, damages, penalties, settlements, judgments, orders, losses, costs, charges, attorneys’ fees, and all other expenses, and must further defend Indemnified Parties from any and all claims, actions, suits, prosecutions, and all other legal and/or equitable proceedings resulting from or relating to, whether directly or indirectly, any allegation, whether founded or unfounded and regardless of the nature or character of the act for 1) any negligent, willful, reckless, or wrongful act or omission of Vendor, its employees, representatives, contractors, or agents; 2) any breach of, or inaccuracy in, any representation and/or warranty made by Vendor within this Agreement including, but not limited to, claims for personal injury, death, or damage to property or other demands; 3) any failure to perform by Vendor, or any defect in Vendor’s performance of Vendor’s obligations and duties pursuant to this Agreement and/or in rendering any Services; 4) any claim alleging that Vendor infringing on patents, copyrights, trademarks, or service marks of other Intellectual Property rights of a third-parties; 5) any violation by Vendor of applicable laws or regulations, including but not limited to Section 5 of the FTC Act relating to unfair methods of competition, unfairness, and deceptive advertising; 6) any claim that Melage Beauty is obligated to pay tax obligations in connection with this Agreement or any terms and conditions incorporated by reference within the Agreement; or 7)any alleged violation by Vendor of any law, statute, regulation or ordinance. Upon receiving notice or knowledge of any claim, event, or loss for which indemnity is sought under this Agreement, Melage Beauty, as the party seeking indemnification, must tender the matter to Vendor.
- Indemnified Parties may, in their sole discretion, engage their own attorneys and other professionals to defend or assist them, and, at the option of Indemnified Parties, their attorneys must control the resolution of any claim or proceeding, subject to the provisions contained within this Agreement. Upon demand, Vendor must pay or, in the sole discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection to a claim or proceeding.
- Vendor will not settle any claim arising from this Agreement without Melage Beauty’s prior written consent, and Vendor will indemnify Melage Beauty for any reasonable attorneys’ fees or other costs incurred by Melage Beauty or other Indemnified Parties in investigating or enforcing this Section.
U. Limitation of Liability. To the fullest extent permitted by law, in no event must Melage Beauty nor any members, managers, affiliates, officers, employees, contractors, or agents of Melage Beauty be held liable to Vendor for any loss of profits, revenue or savings, loss of business opportunity and/or business interruption or down time, loss of data. Vendor waives and releases Melage Beauty from any claim for any actual, consequential, incidental, indirect, special or punitive damages arising out of or in connection with our services or these Terms & Conditions. Under circumstance where a total disclaimer of liability is not allowed, Melage Beauty’s liability to Vendor for any cause whatsoever, and regardless of the form of action, will be limited to the lesser of the one-hundred dollars ($100) or the amount Vendor paid to Melage Beauty during the twelve (12) month period prior to any cause of action. This section does not apply to jurisdictions that do not allow limitations on implied warranties or the exclusion or limitation of certain damages.
V. Force Majeure. Either Party may, without liability, delay performance or cancel the Agreement on account of force majeure or other circumstances beyond its control including, but not limited to, acts of God, terrorist acts, war, riot, fire, explosion, flood, strike, lockout, injunction or telecommunication, electrical or source of supply failure.
W. Dispute Resolution.
- Informal Negotiations. In the event of any dispute regarding the subject matter of this Agreement or payment thereunder, all Parties agree to try for fifteen (15) days to resolve such dispute informally. The term “dispute” is as broad as it can be. It includes any claim or controversy between any of the Parties to this Agreement, except disputes relating to the enforcement or validity of any of the Parties’ licenses or intellectual property rights.
- Binding Arbitration. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement, if the Parties cannot resolve the dispute informally, then Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement must be submitted for binding arbitration before a single arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association (“AAA”), including the Optional Rules for Emergency Measures of Protection, and where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”). You understand that without this provision, you would have the right to sue in court and have a jury trial.
- The arbitration must be held in Charlotte, North Carolina or any other place agreed upon in writing by the Parties. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing Party’s actual damages.
- The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
- Injunctive Relief. A Party may apply to the arbitrator seeking injunctive relief until an arbitration award is rendered or the dispute is otherwise resolved. A Party also may, without waiving any other remedy, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that Party pending the arbitrator’s appointment or decision on the merits of the dispute. If the arbitrator determines that a Party has generally prevailed in the arbitration proceeding, then the arbitrator must award to that party its reasonable out-of- pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorneys’ fees and legal costs.
- Awards. The arbitrator must issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceedings and arbitrator’s award must be maintained by the Parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the Parties’ respective attorneys, tax advisors and senior management.
- The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
- Attorneys Fees. In any arbitration or litigation by either Party to enforce the terms of this Agreement, the prevailing Party is entitled to reimbursement of its reasonable attorneys’ fees and costs in bringing or defending the action. As used in this agreement, ‘prevailing Party’ means the Party that is afforded the greater relief (whether affirmatively or by means of a successful defense) with respect to claims having the greatest value or importance as determined by the court or arbitrator(s) allowing for all of the claims, counterclaims, and defenses asserted under the contract. In claims for money damages, the total amount of recoverable attorneys’ fees and costs cannot not exceed the net monetary award of the prevailing Party.
- Arbitration fees. Arbitration fees and Parties’ share of arbitrator compensation must be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules.
Y. Notices and Communications. All notices and other communications under this Agreement must be in writing. If notice is served by facsimile, or sent by e-mail it must be deemed to have been served on the first business day following the date the notice was faxed or e-mailed. If notice is served by overnight mail, whether by commercial carrier or the United States Postal Service, it must be deemed to have been served on the next business date following its mailing. If notice is served by certified mail, it must be deemed to have been served as of the date on the return receipt. Any party hereto may change its address for purposes of this paragraph by written notice given in the manner provided above. The Parties’ addresses to be used for said notice, unless changed as set forth in this agreement, are set forth in the signature line on the last page of the agreement.
Z. Entire Agreement. This Agreement constitutes the entire understanding and Agreement between the Parties, pertaining to its subject matter, and must supersede and govern any and all prior representations, understandings warranties, proposals, negotiations and discussions, whether oral or written of the Parties. No other Agreements, representation, or warranties, whether written or oral, must be deemed to bind the Parties with respect to the subject matter of this Agreement.
AA. Assignment. The Vendor may not assign this Agreement or any of its rights or obligations or delegate the performance of the Agreement to a third party, without the prior written consent of Melage Beauty, which consent may be arbitrarily withheld. Any attempt to assign this Agreement without such consent must be void and of no effect.
BB. Gender and Number. Unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing one gender include the other gender.
CC. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision must not affect the other provisions of this Agreement, and all provisions not affected by such invalidity must remain in full force and effect.
DD. Waiver. The waiver by any Party of a breach or default in any of the provisions of this Agreement by the other Parties must not be construed as a waiver of any succeeding breach of the same or other provisions; nor must any delay or omission on the part of any Party to exercise or avail itself of any right, power or privilege that it has or may have under this Agreement operate as a waiver of any breach or default by the other Parties.
EE. Counterparts. This Agreement may be executed in any number of counterparts, including by facsimile, each of which must be deemed to be an original and all of which together must be deemed to be one and the same instrument.
FF. Headings. The headings and the order in which the paragraphs appear in this Agreement have no significance whatsoever.
GG. Governing Law. This Agreement is and must be subject to, governed by, and construed and enforced pursuant to the laws of the State of North Carolina.
HH. Signature Authority. The undersigned warrant that they are duly authorized representatives of the Parties, that all corporate action necessary to approve this Agreement has been taken, and that they have the authority to sign this Agreement on behalf of the Parties.