Terms of Service
TERMS OF USE
Thank you for visiting our site. Hourglass Cosmetics (hereinafter "Hourglass", “Hourglass Cosmetics”, "we," "us" or "our") provides the information, content and services ("Services") available via our website www.hourglasscosmetics.ca (the "Site") to you ("you", “your”) pursuant to the following Terms & Conditions of Use ("Terms").
Please read these Terms carefully before using our Site, as they set forth the legally binding terms and conditions for your use of the Site and all related Content (defined below), Services, apps and purchases that you make from the Site, regardless of the means, manner or place from which you access our Site. By accessing and using Hourglass Cosmetic's Site and Content, you acknowledge and agree to abide by the following Terms. If you do not agree to these Terms, do not use Hourglass Cosmetic's Site or Content.
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT MAY REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND PROHIBITS CLASS ACTION CLAIMS, DEPENDING ON THE JURISDICTION IN WHICH YOU RESIDE. ARBITRATION MEANS YOU WAIVE YOUR RIGHT TO A JURY TRIAL. FOR MORE DETAILS ON THESE MATTERS, AND HOW YOU CAN OPT-OUT OF ARBITRATION, SEE THE SECTION TITLED “DISPUTE RESOLUTION” BELOW.
Where permitted by applicable law, Hourglass reserves the right to change these Terms at any time without notice. Such changed Terms will take effect once we post them at the Site. Where applicable law requires that notice of any such changes be provided to you, such notice will be provided in accordance with the law, and you may terminate your use of the Services and the Site rather than accept the revisions. To the fullest extent permitted by applicable law, your continued use of the Site following any such changes will mean that You accept and agree to them.
Hourglass’ address is 1501 Lincoln Blvd #1064, Venice, California, United States, 90291. You may also contact Hourglass via email at cs@hourglasscosmetics.ca.
Privacy
Please also review Hourglass Cosmetic’s Privacy Policy , which also governs your use of our Site and Services.
Your Use of Hourglass Cosmetic’s Site & Services
Hourglass grants you a limited license to access and use the Site for your own personal and non-commercial use. Unless otherwise permitted by these Terms, you may not copy, distribute, display, transmit, perform, modify, publish or create derivative works from the Site or its Content.
You may not download (other than page caching) or modify any portion of the Site without Hourglass Cosmetic’s express written consent. You may not resell or make any other commercial use of the Site or its contents, collect and use product listings, descriptions, or prices, creative derivative works from Hourglass Cosmetic’s Site or its contents, download or copy account information for another person's or entity's benefit, or use data mining, robots, scrapers, or similar data gathering and extraction tools on, in or in connection with the Site. You may not reproduce, duplicate, copy, sell, mirror or otherwise exploit any portion of the Site for any commercial purpose without Hourglass Cosmetic’s prior express written consent.
You may not frame or use framing techniques to enclose any Hourglass trademark, logo, or other proprietary information (including images, text, page layout, or form) without Hourglass Cosmetic’s express written consent. You may not use any meta tags or any other "hidden text" utilizing Hourglass Cosmetic’s name or trademarks without Hourglass Cosmetic’s express written consent. You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the Site's security or authentication measures.
You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the Site's infrastructure or supporting networks, or any systems or networks connected thereto. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person's use of the Site, or use the Site or Content in any manner that could damage, impair, overburden or disable the Site or any component that enables the Site's proper operation.
You agree not to impersonate any person or entity, or misrepresent your affiliation with any person or entity. You agree not to use the Site to harass or stalk any individual, nor entrap nor harm any other person, including harming minors in any way. You may create a hyperlink to the Site so long as You do not portray Hourglass, its products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any Hourglass logo or other proprietary graphic or image as part of the link without Hourglass Cosmetic’s express prior written permission.
You agree that when accessing or using the Site and/or Services, you will act in accordance with the law, custom and in good faith. You may not make any change to the Site and may not impair in any way the Site's integrity or operation. Without limiting the generality of any other provision of these Terms, if you default negligently or willfully in any of the obligations set forth in these Terms, you shall be liable for all of the resulting losses and damages.
By communicating with Hourglass electronically (such as by visiting our Site or sending us e-mails), you consent to receive communications from us electronically. Hourglass will communicate with you by e-mail or by posting notices on this site. 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.
Your Account
We may require you to register with Hourglass in order to use certain Site features or Services, such as to purchase products. When you register, we may decline to grant you, and you may not use, a user name or email address that another person or entity already owns or uses, that might be construed as impersonating another person, that might violate another's intellectual property or other rights, that we may deem offensive or objectionable, or that we reject for any other reason in our sole discretion.
You are responsible for maintaining the confidentiality of your account details (including your password and account data that you may use to access the Site) and restricting access to your computer, and you agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party. You agree to accept full responsibility for all activities that occur under and/or within your account or password. You agree to immediately notify Hourglass of any unauthorized use of your password or user name or any other breach of your account's security, and to ensure that you "log off" and exit from your account at the end of each Site visit. Hourglass will not be liable for any loss or damage that you or anyone else may incur from another's use of your account, or arising from your failure to comply with any of the foregoing obligations. Where permitted by applicable law, we reserve the right to refuse service and/or terminate accounts without prior notice if these Terms are violated or if we decide, in our sole discretion, that it would be in the best interest of Hourglass or its community to do so.
Your Product Orders
The products and Services available at our Site are for personal use only. You may not sell or resell any of the products or Services, or samples thereof, that you purchase or otherwise obtain from us. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled, or products or services to be provided, that we believe, in our sole discretion, may result in the violation of our Terms. You must be at least the age or older of majority in the jurisdiction where you are accessing the Site or Services to purchase from our site.
Additional terms and conditions may apply to your purchases and to specific Site features such as contests or promotions, all of which terms are made a part of these Terms by this reference. You agree to abide by such other terms and conditions. In the event of any conflict between these Terms and terms for a specific promotion or other Service of the Site, the latter terms shall control with respect to your use of that promotion or specific Service.
Product Information
All of the Site's material and information is offered solely for personal, educational, or informational purposes. The information, materials, statements and Services are not intended to diagnose, treat or prevent any condition or illness. Please use all products strictly in accordance with their instructions, precautions, warnings and guidelines. Please always check each product's ingredients to avoid potential allergic reactions. Minors may use goods or product obtained from the Site only after the minor's parent(s) or guardian has discussed the product's use with the minor's physician or medical professional. Any statements offered about products have not been evaluated by the United States Food & Drug Administration (unless otherwise specified), and any results reported may not necessarily occur in all individuals. Hourglass products are not intended for use in medical, life-saving or life-sustaining applications, nor for any application in which the product's failure could create a situation where personal injury or death may occur.
Hourglass has endeavored to provide accurate information on the Site, but assumes no responsibility for the information's accuracy. We do not warrant that the product descriptions, details, colors or other content on the Site are accurate, complete, reliable, current, or error-free. The Site's reference to any goods, services, processes, activities or other information offered by other parties does not imply any endorsement or recommendation by Hourglass itself unless specifically stated otherwise. Our Site may contain inaccuracies or typographical errors, and may not be complete or current. Hourglass reserves the right to correct any errors, inaccuracies or omissions (including after you have submitted an order) and to change or update information at any time without prior notice. We reserve the right to cancel or to decline to accept any order placed based on incorrect pricing or availability information, whether or not the order has been confirmed and your payment method charged. If your payment method was already charged for the purchase and your order is cancelled, Hourglass will issue a credit to your payment method.
Please note that while Hourglass has endeavored accurately to depict, describe and display the particular product color(s), the actual colors that you see may depend upon your viewing device, and may not be accurate.
Site Content
Hourglass owns and/or controls the rights to all of the Site's images, text, graphics, user interfaces, designs, photographs, trademarks, logos, sounds, music, artwork and computer code ("Content"), including the design, "look and feel," trade dress, structure, selection, coordination, and arrangement thereof, all of which is protected by trademark, copyright and related laws (see "Intellectual Property" below).
You may access, view, download, and print Content for your personal, non-commercial use only, provided that you do not modify or make commercial use of Content, and retain all copyright, trademark, or other proprietary designations contained in Content. Except as these Terms expressly provide, you may not copy, reproduce, upload, republish, encode, transmit or distribute any part of the Site or Content in any way or form to any other computer, server, web site or other medium for publication or distribution or for any commercial purpose without Hourglass Cosmetic’s express prior written consent.
Your User Content
Hourglass Cosmetic’s Site may provide functionality enabling you to make available your own comments and content. When you transmit, upload, post, e-mail, share, distribute, reproduce or otherwise make available any comments, suggestions, ideas, inquiries, data, text, software, music, audio files, photographs, graphics, images, videos, messages, ideas, suggestions or other materials ("User Content") on or to Hourglass Cosmetic’s Site, you are entirely responsible for such User Content. You understand you are participating in a public forum and that any User Content that you submit to Hourglass and/or the Site may be available to all other Site users. Hourglass does not endorse any User Content, nor any opinion, representation, recommendation or advice contained therein, and Hourglass expressly disclaims any and all liability in connection with User Content submissions.
As to all User Content that you submit, you warrant that:
(a) you are either the User Content's sole author and owner of all intellectual property rights therein, or you possess all necessary rights, releases, consents and/or licenses to enable and authorize you and Hourglass Cosmetic’s use of the User Content at the Site (and elsewhere) as provided hereunder;
(b) any User Content that you submit is: (i) not false, defamatory, obscene or misleading, (ii) does not violate any right of any other person or entity, or any applicable law or ordinance, (iii) does not contain any computer viruses, malware or other potentially harmful electronic files, or any material intended to disrupt, alter, damage or destroy any part of the Site, (iv) does not contain any unauthorized advertising, and (v) is not, or would not reasonably be considered to be harmful, defamatory, bullying, libelous, vulgar, obscene, pornographic, invasive of another's privacy, hateful, racially or religiously biased or offensive, abusive, tortious, threatening or harassing to any individual, partnership or corporation.
You grant to Hourglass a royalty-free, perpetual, worldwide, unlimited, nonexclusive, irrevocable, license to use, copy, publish, distribute, modify, edit, create derivative works from, translate and display any User Content that you make available, in any media or medium, and in any form, format, or forum now known or hereafter developed. You further agree that Hourglass is free to use any User Content for any purpose, including but not limited to the Site, Hourglass e-mails, social media posts, media content or promotional materials. Hourglass shall be under no obligation to preserve, or pay compensation for use of any User Content. You further grant to Hourglass the right to use your name in connection with any such User Content, but Hourglass shall not be obligated to attribute any of your User Content to you. You warrant that all User Content that you submit shall comply with the Federal Trade Commission's Guides on the Use of Endorsements and Testimonials in Advertising, including but not limited to your disclosing if you have received any incentive or compensation for submitting User Content to the Site.
Hourglass is and shall not be responsible for evaluating your User Content, and does not assume any responsibility or liability for User Content. We do not endorse or control the User Content transmitted or posted on the Site and do not warrant its accuracy, integrity or quality. You acknowledge that by using the Site, you may be exposed to User Content that is offensive, indecent or objectionable to you. You hereby waive all rights to any claims against Hourglass of any type arising out of your use of the Site or any User Content that you may encounter at the Site. You acknowledge that Hourglass has the right (but not the obligation) in our sole discretion to refuse to post or remove any User Content where permitted by applicable law.
Consent to Receive Communications
By providing Hourglass with your e-mail address and/or telephone number, you consent to receiving and accepting communications from Hourglass, including via e-mail, push notifications, (automated or non-automated) text messages (together, “Communications”) or other comparable means at any of the e-mail addresses and/or telephone numbers you provide. You agree that we may send such Communications for any transactional, customer service, order, auto-delivery, or other account- or order-related matters, and, as applicable, for advertising, marketing or promotional purposes or other purpose you requested or consented to. The messaging frequency will vary.
If you consent to receive marketing-related text messages, YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXT MESSAGES AS A CONDITION OF PURCHASING ANY GOODS OR SERVICES. In response to our text messages, you may Reply HELP for help or reply STOP to unsubscribe. If you opt out of receiving marketing text messages by unsubscribing, you may receive an additional mobile message confirming your decision to opt out. Standard text messaging and data charges will apply to text messages we may send.
IF YOU WISH TO OPT OUT OF HOURGLASS MARKETING COMMUNICATIONS OR TEXT MESSAGES FROM US, YOU AGREE TO OPT OUT BY FOLLOWING ANY UNSUBSCRIBE INSTRUCTIONS PROVIDED TO YOU IN THOSE COMMUNICATIONS. EVEN IF YOU OPT OUT OF MARKETING COMMUNICATIONS OR TEXT MESSAGES, WE MAY STILL SEND YOU OTHER ESSENTIAL COMMUNICATIONS DIRECTLY RELATED TO YOUR ACCOUNT OR ORDERS.
Intellectual Property
The Site and its Content Copyright 2024 Kingdom Animalia, LLC. All rights reserved. Hourglass and the Hourglass logo are registered trademarks of Kingdom Animalia, LLC. You acknowledge and agree that Hourglass owns all legal rights, title and interest in and to the Site and Content, including any Hourglass trademarks, trade names, trade dress, logos, domain names and other brand features therein (whether those rights are registered or not, and wherever in the world they may exist), and that they are protected by international copyright laws and treaties. Hourglass does not grant you any express or implied right under any copyright, trademark, patent, trade secret or other intellectual property right.
DMCA Copyright Infringement Notices
Hourglass respects others' intellectual property rights and requires that you do the same in your use of the Site. If you are a copyright owner or an agent thereof and believe that any User Content or other content on the Site infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that you claim is infringed;
- Identification of the copyrighted work(s) that you claim has been infringed;
- A description of the material that you claim is infringing and the location of that material on the Site;
- Your address, telephone number and email address;
- A statement by you that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Designated Agent for notice for claims of copyright infringement is Hourglass Cosmetics, 1501 Lincoln Blvd #1064, Venice, California, United States, 90291, e-mail: legal@hourglasscosmetics.com. Only DMCA notices should go to Hourglass Cosmetic’s Copyright Agent; any other feedback or comments should be directed to our customer service, and will not receive a response from Hourglass Cosmetic’s copyright agent. You acknowledge that if you fail to comply with all of the requirements set forth above, your DMCA notice may not be valid.
Upon receipt of a notice complying with the DMCA, we will act expeditiously to remove or disable access to any material claimed to be infringing. We will take reasonable steps promptly to notify the user that we have removed or disabled access to such material.
Links to Other Sites
The Site may provide links to third-party websites that are not operated by Hourglass as a convenience ("Third Party Site"). Hourglass has no control over these Third Party Sites and is not responsible or liable for the availability, security, content, or resources of such Third Party Sites. The inclusion of any link on the Site does not imply a referral by Hourglass to, or an endorsement by Hourglass of, the Third Party Site or any products or services on the Third Party Site. Hourglass is not liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of such content, information, products, goods or services available on or through any such Third Party Sites.
Indemnification
You agree to defend (at Hourglass Cosmetic’s option), indemnify, and hold Hourglass (including its officers, directors, employees, agents/mandataries, licensors, subsidiaries and suppliers) harmless from and against any and all claims, actions, demands, losses, liabilities and settlements, of every kind and nature, known and unknown, including without limitation, reasonable legal and accounting fees, made against Hourglass by any third party due to, resulting from, or alleged to result from, your use of the Site, your violation of these Terms and Conditions and/or any law, rule, regulation and/or contract, your violation of any third party's rights (including copyright or privacy right), or any claim relating to User Content.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT HOURGLASS IS NOT LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR MADE AVAILABLE TO YOU THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, AND CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, UNLESS OTHERWISE SPECIFIED IN WRITING. THESE LIMITATIONS ON HOURGLASS COSMETIC’S LIABILITY SHALL APPLY WHETHER OR NOT HOURGLASS HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES. CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Disclaimer of Warranties
THE SITE AND ITS CONTENT AND SERVICES ARE PRESENTED "AS IS" AND “AS AVAILABLE”. HOURGLASS MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, DURABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH THE SITE, ITS CONTENTS OR SERVICES, OR HOURGLASS PRODUCTS. YOU AGREE THAT YOUR USE OF THE SITE AND CONTENT IS AT YOUR SOLE RISK. YOU AGREE THAT HOURGLASS WILL NOT BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY, EXTRA-CONTRACTUAL LIABILITY OR IN TORT (INCLUDING NEGLIGENCE) FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF PROFITS, ACCESS DELAYS OR INTERRUPTIONS TO THE SITE, DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, COMPUTER VIRUSES, SYSTEM FAILURES OR MALFUNCTIONS WHICH MAY OCCUR IN CONNECTION WITH YOUR USE OF THE SITE, ANY INACCURACIES OR OMISSIONS IN CONTENT AND/OR EVENTS BEYOND OUR REASONABLE CONTROL, EVEN IF HOURGLASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Quebec’s Consumer Protection Act (CQLR c P-40.1) provides QUEBEC RESIDENTS with certain rights, including guarantees as to acceptable quality, safety, durability, accurate description and against hidden defects. Nothing in these Terms is intended to limit or replace any rights under the Consumer Protection Act (CQLR c P-40.1), and to the extent that they are not permitted by law, the above exclusions do not apply to QUEBEC RESIDENTS.
AS IT RELATES TO USERS IN QUEBEC, NOTHING IN THIS SECTION SHALL LIMIT HOURGLASS’ LIABILITY WITH RESPECT TO THE CONSEQUENCES OF ITS OWN ACTS OR THE ACTS OF ITS REPRESENTATIVES.
Severability
If any provision of these Terms is held by a court or agency of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, and the remainder of these Terms shall remain in full force and effect.
Void Where Prohibited
Hourglass operates and administers the site from California, USA. Although the Site is potentially accessible worldwide, not all features or products are available to all persons or geographic locations, or appropriate or lawful for use outside Canada. Hourglass reserves the right to limit, in our sole discretion, the quantity or provision of any product or service to any person, entity or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. This Site is intended for use only in Canada. If you choose to access the Site from outside Canada, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
You may not transfer any of your rights under these Terms to any other person. We may transfer any of our rights under these Terms to any person or ask any person to fulfill any aspect of our obligations so long as performance of those obligations is not affected.
Dispute Resolution
PLEASE READ THE “AGREEMENT TO ARBITRATE” AND “CLASS ACTION WAIVER” SECTIONS BELOW CAREFULLY
Agreement to Arbitrate
Arbitration is the referral of a dispute to one or more individuals who will review the dispute and make a final and binding determination to resolve the dispute instead of having the dispute decided by a judge or jury in court. UNLESS PROHIBITED BY LAW, You and Hourglass each agree that any and all disputes or claims that arise or have arisen between you and Hourglass shall be resolved exclusively through final and binding arbitration rather than in court, except that: (1) you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; AND (2) if an applicable law in your province of residence gives you the right to resolve your dispute or claim before the courts of that province notwithstanding your agreement to arbitration, you may elect either to do so or proceed in arbitration.
UNLESS PROHIBITED BY LAW, You and Hourglass agree to waive any right to a jury trial.
This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
This Agreement to Arbitrate does not apply to actions by Hourglass for intellectual property claims, including by way of example, trade secret misappropriation, patent infringement, copyright infringement or misuse, and/or trademark infringement or dilution.
Pre-Arbitration Notice. In the event of a dispute or claim (the “Action”), you or Hourglass must first send to the other party a notice of the Action that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Action, and the relief requested, within six months from the date the Action arises or the date they knew or should have known of the Action. The notice to Hourglass must be addressed to legal@hourglasscosmetics.com or 1501 Lincoln Blvd #1064, Venice, California, United States, 90291, Attention: Legal Department. The notice from Hourglass to you will be sent by certified mail to the most recent address we have on file for you, or via email. If Hourglass and you do not resolve the Action within sixty (60) calendar days after the notice of the Action is received, you or Hourglass may commence an arbitration proceeding pursuant to this section. Each party agrees to act in good faith to resolve the Action before commencing arbitration.
Procedure. Arbitration shall take place in the county in which you reside or at another mutually agreed location. Arbitration shall be administered by the American Arbitration Association (“AAA”) and be governed by the AAA Commercial Arbitration Rules (“AAA Rules”). The AAA rules are available at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. Any Action shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, except that the arbitrator shall not award punitive damages to either party. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Arbitration Fees. Payment of all AAA or arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in these Terms. If the value of the relief sought is $10,000 or less, at your request, Hourglass will pay all AAA or arbitrator fees associated with the arbitration. Any request for payment of fees by Hourglass should be submitted by mail to the AAA along with your Demand for Arbitration and Hourglass will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, Hourglass will pay as much of the AAA or arbitrator fees as the arbitrator deems necessary to prevent the cost of accessing the arbitration from being prohibitive. In the event the arbitrator determines that either the substance of your or Hourglass Cosmetic’s claim or the relief sought was frivolous or brought for an improper purpose, then you or Hourglass may seek to recover from you or Hourglass any fees it paid, including attorneys’ fees, to the extent permitted by the AAA’s rules and applicable law.
Time Limitation. UNLESS PROHIBITED BY LAW, YOU AND HOURGLASS AGREE THAT ANY ACTION SUBJECT TO ARBITRATION IN THESE TERMS MUST BE COMMENCED OR FILED BY YOU OR HOURGLASS WITHIN ONE (1) YEAR OF THE DATE THE FACTS THAT GIVE RISE TO THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND HOURGLASS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
Class Waiver
You and Hourglass agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class, consolidated or representative action or proceeding. Unless both you and Hourglass agree otherwise, the arbitrator(s) may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative or class proceeding. No Action shall proceed through class arbitration unless you and Hourglass consent in writing. Also, the arbitrator(s) may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded or decision made cannot affect other Hourglass customers.
Opt-Out.
You may elect to opt-out from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in these Terms by sending a letter to Hourglass at 1501 Lincoln Blvd #1064, Venice, California, United States, 90291, Attn: Legal Department, with a copy to legal@hourglasscosmetics.com, postmarked within thirty (30) calendar days of your initial agreement to these Terms (including your first use of the Services) that specifies: (1) your name; (2) your mailing address; (3) and your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in these Terms. In the event that you opt-out consistent with the procedures set forth above, all other terms of these Terms shall continue to apply.
Severability.
If any provision in this “Dispute Resolution” section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire “Dispute Resolution" Section shall be null and void. The terms of this section shall otherwise survive any termination of these Terms.
Amendments to this Dispute Resolution Section.
Notwithstanding any provision in these Terms to the contrary, you and Hourglass agree that if Hourglass makes any material amendments to this Dispute Resolution Section, Hourglass will notify you and you will have thirty (30) calendar days from the date of notice to affirmatively opt-out of any such amendments by sending a written letter to Hourglass at 1501 Lincoln Blvd #1064, Venice, California, United States, 90291, Attn: Legal Department, with a copy to legal@hourglasscosmetics.com, that specifies: (1) your name; (2) your mailing address; and (3) your request to opt-out of such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Action between us in accordance with the language of this Section as stated in these Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
Choice of Law
Except to the extent Canadian federal or provincial law says otherwise, you agree that the laws of the United States and State of California, excluding its conflict of laws rules, and these Terms and Conditions, our Privacy Policy and any other policies posted from time to time on the Site shall govern your use of the Site. For any claim or dispute with us or relating to your use of the Site, or to these Terms, not governed by the section entitled “Dispute Resolution”, you expressly agree to the exclusive jurisdiction and venue of the courts of the County of Los Angeles, State of California. In the event of any violation of these Terms, Hourglass reserves the right to seek all remedies available under law and equity for such violations.
For users who are residents in the Province of Quebec, these Terms are governed in accordance with the laws of the province of Quebec, Canada and the federal laws of Canada applicable therein, without regard to its conflict of law provisions.
Hourglass may revise these Terms at any time by updating this page so please visit these Terms of Use each time you visit the Site to keep up to date with the current terms regarding your use of the Service.
LANGUAGE- QUEBEC CONSUMERS ONLY
You hereby confirm that a French version of these Terms was remitted to you (or was made available to you on the French version of the website) and that notwithstanding this fact, by electing to transact on the English version of the website, you have expressly requested that these Terms and all documents and notices relating thereto be drafted exclusively in the English language.
Vous confirmez par la présente qu'une version française de ces modalités et conditions vous a été remise (ou mise à votre disposition sur la version française du site Web) et que malgré ce fait, en choisissant de conclure des transactions sur la version anglaise du site Web, vous avez expressément demandé que ces modalités et conditions ainsi que tous autres les documents et avis s'y rapportant soient rédigés exclusivement en anglais.
