– Updated March 2019
IMPORTANT: IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE THAT SECTION 11 OF THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH WILL REQUIRE YOU TO RESOLVE ANY DISPUTE WITH BEAUTY ADVISOR ON AN INDIVIDUAL BASIS AND, EXCEPT IN LIMITED CIRCUMSTANCES, THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. PLEASE READ IT CAREFULLY.
b. Code of Conduct. BeautyAdvisor believes that all people deserve to be treated equally and with respect, regardless of their race, ethnicity, nationality, class, religion, belief, sex, language, sexual orientation, gender identity, age, health or other status. BeautyAdvisor chooses to work with professionals who both share these values and embody them in their interactions with consumers, BeautyAdvisor employees, and other professionals. In the event BeautyAdvisor determines that the Featured Pro is not upholding these values, BeautyAdvisor may take action to ensure the integrity of the Services, including terminating the Featured Pro's promoted profile. BeautyAdvisor may also terminate an Advertiser’s Ad program in the event the Featured Pro is charged with or convicted of a crime, or BeautyAdvisor otherwise believes Featured Pro's participation on the BeautyAdvisor platform could harm the reputation and/or good standing of the services offered by BeautyAdvisor.
2. Ad Programs.
a. Display. BeautyAdvisor shall, for a period of time as indicated in the corresponding Signed Agreement (the "Term"), display the Advertiser in one of the top 3 featured placements under the Find Experts section for the agreed upon beauty expert category(s) and metro area(s) on www.beautyadvisor.com, the corresponding applications and/or other URLs controlled by BeautyAdvisor (the "BeautyAdvisor Sites"), and on websites and applications owned or operated by BeautyAdvisor's authorized licensees (the "Licensee Sites"), as applicable. BeautyAdvisor shall display the Featured Pro for locations specified in the metro area(s) outlined by BeautyAdvisor. The order process of the Featured Pros per metro area include a continuous rotation for the first, second, and third spot during the Term and views/clicks/how many leads Advertiser will receive cannot be guaranteed. Advertiser understands that users of the BeautyAdvisor Sites and Licensee Sites, automated computers, third parties, and BeautyAdvisor itself may generate views, or clicks on Advertiser's ads for proper or improper purposes. BeautyAdvisor has priced the Ads with this risk in mind, and Advertiser accepts this risk in purchasing the Featured Pro program.
c. Featured Pro Updates. BeautyAdvisor may send an email to Advertiser asking Advertiser to confirm the continued currency and accuracy of a Featured Pro Ad. If Advertiser does not respond to the update request within the time frame specified, BeautyAdvisor may remove the Featured Pro Ad from BeautyAdvisor Sites without refunding any prepaid amounts to Advertiser. Advertiser may reinstate the Featured Ad, or revise it with different content, at any time during the remainder of the Term of the Featured Pro Ad.
3. Ad Materials; Advertiser Information.
a. License in Ad Materials and Advertiser Information. Advertiser hereby grants to BeautyAdvisor a royalty-free, perpetual, non-exclusive, fully sub-licensable right and license to reproduce, modify, display, distribute, publicly perform, create derivative works from, store, and otherwise use and exploit, all Ad Materials in any form, media, software or technology of any kind to be used only on or in connection with Services. For purposes of this Agreement, "Ad Materials" includes all data and other information provided by Advertiser to BeautyAdvisor, in any form, including without limitation: photos, videos, information, URLs, and other content, whether generated by or for Advertiser. For clarity, BeautyAdvisor owns all rights, title and interest in all data that BeautyAdvisor collects about Advertiser’s use of the Services and user interaction with Ads, leads and pricing, as well as any derivative works created pursuant to the prior sentence.
b. Advertiser Responsible for Ad Materials. Advertiser is solely responsible for all Ad Materials submitted to BeautyAdvisor and represents to BeautyAdvisor that Advertiser is authorized to act on behalf of and has bound to the terms of this Agreement any third party for which Advertiser places Ads. Advertiser is responsible for promptly updating Advertiser’s Listings and other Ad Materials to ensure that all Ad Materials are current and accurate. Advertiser represents and warrants to BeautyAdvisor that it holds all rights (including, without limitation, any copyright, trademark, patent, publicity or other rights) in the Ad Materials necessary for BeautyAdvisor to exercise its rights under the license granted in Section 3(a). Advertiser agrees not to include in the screen or profile names that are displayed in an Ad any language other than the Advertiser's first and last name and/or the name of Advertiser's business. Advertiser further represents and warrants to BeautyAdvisor that: (A) all Advertiser information provided in connection with Advertiser's account and any Ad Order is complete, correct and current; (B) the Ad Materials comply with all policies designed to ensure compliance with civil rights and anti-discrimination laws; (C) the Ad Materials do not indicate any discrimination on the basis of race, color, religion, sex, handicap, familial status or national origin; and (D) none of the Ad Materials will violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including intellectual property rights). Violation of the foregoing may result in immediate termination of Advertiser’s Ad Order (s) and/or Advertiser's account without notice, without limiting any other remedies available to BeautyAdvisor.
c. Non-compliant Ad Materials. BeautyAdvisor reserves the right to remove an Featured Pro upon finding an error, violation of the Policies or this Agreement, or for any other reason. BeautyAdvisor may send a notice to Advertiser, requiring that Advertiser modify their profile and if Advertiser does not respond to the update request within the time frame specified and modify the Ad Materials to comply with the notice, BeautyAdvisor may discontinue displaying the Featured Pro without refunding any prepaid amounts to Advertiser. Advertiser may reinstate the Featured Pro Listing, or revise them with different content, at any time during the remainder of the term indicated in the Agreement. BeautyAdvisor has the right, but not the obligation, to modify the Ad Materials for format, spelling, or other matters of presentation, or to comply with the Policies and this Agreement.
a. Nonrefundable. All Ad purchases are non-refundable.
b. Term. The Featured Pro listing runs for the full term indicated in the corresponding online signed agreement, which thereafter will auto-renew each on a monthly contract until the Featured Pro listing is updated or terminated by Advertiser or BeautyAdvisor. Unless otherwise provided in the Featured Pro activation form, after the initial term and/or any renewal term of a Featured Pro order placed via BeautyAdvisor business development manager, Advertiser will continue to be charged for the advertising set forth on the latest e-signed agreement. Advertiser may terminate a Featured Pro spot by providing written email notice to email@example.com or directly to the Featured Pro's personal account manager's email within 5 business days of the Featured Pro's next billing date (once the initial term has been completed as initially agreed to on the activation form).
c. No Refund; Fee for Early Termination. BeautyAdvisor may, in its sole discretion, change the price to be paid by an Advertiser for such Featured Pro ad, effective as of the beginning of any monthly renewal term. Upon providing notice to BeautyAdvisor, Advertiser may terminate a BeautyAdvisor Featured Pro spot before the end of the Term, however: (A) prepaid amounts are not refundable; (B) Advertiser will continue to be billed on a monthly basis for the remainder of the term. BeautyAdvisor may terminate Advertiser’s Featured Pro order at any time upon providing notice to Advertiser.
d. Upgrades/Downgrades. Advertisers who purchased a Featured Pro listing may upgrade their subscription at any time, subject to availability and then current pricing.
e. Restart. In the event Advertiser or BeautyAdvisor discontinues the display of Advertiser's Ads, Advertiser is responsible for contacting BeautyAdvisor to restart the display, which may require a modification to the Ad Materials.
f. Survival. BeautyAdvisor reserves the right to update, suspend or discontinue any Featured Pro program and/or the terms of this Agreement at any time.
5. Prohibited Uses. Advertiser shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions for Advertiser's own Ad or any other advertisements on the BeautyAdvisor Sites or the Licensee Sites; (b) use any automated means of scraping or data extraction to collect BeautyAdvisor advertising related information from any BeautyAdvisor or Licensee Site except as expressly permitted by BeautyAdvisor in writing; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice.
6. Disclaimer and Limitation of Liability. BEAUTYADVISOR PROVIDES THE ADS PROGRAMS "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH ADVERTISER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEAUTYADVISOR AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. BEAUTYADVISOR, ITS LICENSEES, AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE. Without limitation, BEAUTYADVISOR disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) availability and delivery of any views or Ad Materials on any BEAUTYADVISOR Site or Licensee Site, or section thereof; (ii) click through rate; (iii) click throughs; (iv) conversions or other results for any ads; or (v) the adjacency or position of Ads on the BEAUTYADVISOR Site(s) or the Licensee Site(s). EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND ADVERTISER'S BREACHES OF SECTION 1 AND SECTION 3.B, TO THE FULLEST EXTENT PERMITTED BY LAW: (y) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO ADVERTISER'S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (z) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO BEAUTYADVISOR BY ADVERTISER FOR THE AD GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including but not limited to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
7. Payment. Advertiser shall be responsible for all charges as provided via Advertiser's account, and shall pay all charges in U.S. Dollars. For purchases directly from BeautyAdvisor, charges are made against Advertiser's credit card at the time of purchase and on a monthly basis for ongoing Ads programs. Charges are exclusive of applicable taxes. Advertiser is responsible for paying (a) all taxes, government charges, and (b) reasonable expenses (including collection agency and attorneys' fees) BeautyAdvisor incurs in collecting unpaid amounts. To the fullest extent permitted by law, Advertiser waives all claims relating to charges (including any claims for charges based on suspected invalid exposure) unless claimed within sixty (60) days after the charge (without prejudice to Advertiser's credit card issuer rights). Charges are based solely on BeautyAdvisor's measurements for the Ads program. To the fullest extent permitted by law, refunds (if any) are at the sole discretion of BeautyAdvisor. Nothing in this Agreement may obligate BeautyAdvisor to extend credit to any party. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to BeautyAdvisor may be shared by BeautyAdvisor with companies who work on BeautyAdvisor's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to BeautyAdvisor and servicing Advertiser's account. BeautyAdvisor may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. BeautyAdvisor shall not be liable for any use or disclosure of such information by such third parties.
8. Changes to Terms of the Agreement and or the Ads Programs. BeautyAdvisor may change the terms of this Agreement at any time upon notice and without liability. BeautyAdvisor may give notice as described in Section 11 below, or BeautyAdvisor may give notice by updating the terms on the Help Center located at http://www.beautyadvisor.com. BeautyAdvisor reserves the right to change or discontinue any or all of the Featured Pro programs at any time with or without notice.
10. Consent to Receive Communications. Advertiser agrees that BeautyAdvisor, or a third party acting on behalf of BeautyAdvisor, may email, call and/or send text messages to the email address and telephone number(s) provided by Advertiser, including calls and text messages using an automatic telephone dialing system and/or an artificial or prerecorded voice ("Other Messages"). Advertiser further agrees that such emails, calls and/or text messages may constitute advertising or telemarketing, e.g. BeautyAdvisor may email, call, or text with information about new service offerings available to Advertiser. Advertiser understands that agreeing to receive Other Messages that constitute advertising or telemarketing is not a condition to purchase.
11. Dispute Resolution.
a. Binding Arbitration. If you reside in the United States, you and BeautyAdvisor agree to resolve any claims relating to these this Agreement or the Ads (collectively, "Disputes") through final and binding arbitration, except as otherwise specifically provided herein.
b. Waiver of Class Action. You acknowledge and agree that you and BeautyAdvisor are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and BeautyAdvisor otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this Agreement.
c. Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (the "FAA") governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1–800–778–7879.) If the FAA and AAA Rules are found not to apply to any Dispute hereunder, or the enforcement thereof, then that issue shall be resolved under the laws of the State of Delaware without giving effect without giving effect to its conflict of laws provisions.
d. Notice; Informal Dispute Resolution. A party who intends to seek arbitration must first send written notice to the other party by certified mail. Notice to BeautyAdvisor, should be sent to 1521 Concord Pike #301, Wilmington, DE. 19803, with a copy to the Legal Department. Your notice must include (a) your name, postal address, telephone number, email address, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. BeautyAdvisor’s notice to you will be sent electronically to the email address BeautyAdvisor has on file associated with your BeautyAdvisor account, and will include (a) BeautyAdvisor’s name, postal address, telephone number and an email address at which BeautyAdvisor can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that BeautyAdvisor is seeking. If you and BeautyAdvisor cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or BeautyAdvisor may, as appropriate and in accordance with this Agreement, commence an arbitration proceeding.
e. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
f. Arbitration Location and Procedure. Unless you and BeautyAdvisor agree otherwise, the arbitration will be conducted in New Castle County, Delaware and the state and federal courts located in New Castle, Delaware shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. If the Dispute does not exceed $10,000, you or BeautyAdvisor may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and BeautyAdvisor subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or BeautyAdvisor may attend by telephone, unless the arbitrator requires otherwise. If the Dispute exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
g. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the "Liability Limitation; Exclusive Remedy" section as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party shall be entitled to an award of reasonable attorney fees.
h. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
i. Changes. Notwithstanding the provisions of the "Changes; Discontinuance" section, if BeautyAdvisor changes this "Dispute Resolution" section after the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending BeautyAdvisor written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of BeautyAdvisor’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will resolve any Dispute between you and BeautyAdvisor in accordance with the provisions of this "Dispute Resolution" section as of the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement).
j. Exceptions to Agreement to Arbitrate. Either party may bring a lawsuit solely for injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Wilmington, Delaware to resolve your claim.
12. Miscellaneous. Except as preempted by the FAA, this Agreement is governed by the laws of the State of Delaware, without giving effect to its conflict of laws provisions. Each party agrees to submit to exclusive jurisdiction and venue in the state and federal courts sitting in New Castle County, Delaware for any actions for which the parties retain the right to seek injunctive or other equitable relief. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys' fees and expenses. This Agreement, including the corresponding Featured Pro placement(s), constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void. Advertiser may grant approvals, permissions, extensions and consents by email, but any modifications by Advertiser to the Agreement must be agreed upon in a writing executed by both parties. Any notices to BeautyAdvisor must be sent to BeautyAdvisor with a copy to Legal Department, via registered mail with return receipt or air mail or overnight courier, and are deemed given upon receipt. Notice to Advertiser may be effected by sending an email to the email address specified in Advertiser's account, or by posting a message to Advertiser's account interface, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for a message). A waiver of any default is not a waiver of any subsequent default. Subject to Section 11, unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Advertiser may not assign any of its rights hereunder and any such attempt is void. BeautyAdvisor and Advertiser are independent contractors, not legal partners or agents. In the event that this Agreement or the applicable Featured Pro program is terminated, BeautyAdvisor shall not be obligated to return any materials to Advertiser.