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Terms of use
Effective date: May 15, 2023Welcome to Ernesta. Please read on to learn the rules and restrictions that govern your use of our website(s) (including www.ernesta.com), services and applications (the "Services"), including, without limitation, any request to receive information about, or to purchase any of the products made available through our website(s) (each, a "Product"). Your purchase of any Products may also be governed by any other terms made available by us to you during the sales process.If you have any questions, comments, or concerns regarding these terms or the Products or Services, please contact us at:Email: support@ernesta.com Address: 322 8th Avenue, Suite 601, New York, NY 10001, United StatesThese Terms of Use (the "Terms") are a binding contract between you and ERNESTA HOME, INC. ("Ernesta," "we" and "us"). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in our Cancellation, Refund and Exchange Policy and our Limited Warranty Policy (each of which you can also find in these Terms), our Privacy Policy, and any other accompanying terms and conditions of sale entered into between you and us for the sale of any Products. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions ("Additional Terms"), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.Please read these Terms carefully. They cover important information about the Products and Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THESE TERMS; IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.ARBITRATION NOTICE AND CLASS ACTION WAIVER: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE TO OPT OUT OF ARBITRATION. WITH THE EXCEPTION OF CERTAIN TYPES OF DISPUTES DESCRIBED BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.WILL THESE TERMS EVER CHANGE?
We are constantly trying to improve our Products and Services, so these Terms may need to change along with our Products and Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on the Terms located on our website (www.ernesta.com) and update the "Last Updated" date at the top of that page. Such changes will be effective on the date that they are posted to Ernesta's site. We may also, at our discretion, send you an email and/or notify you of changes by some other means. We and You agree that if you use the Services in any way after a change to the Terms is effective, that means you agree to be bound by all of the changes. If you don't agree to be bound by the updated Terms, then except as otherwise provided with respect to changes to the Arbitration Agreement, as set forth in the Arbitration Agreement section below , you may no longer use the Services.Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.WHAT ABOUT MY PRIVACY?
Ernesta takes the privacy of its users very seriously. For the current Ernesta Privacy Policy, please click here.Children's Online Privacy Protection ActThe Children's Online Privacy Protection Act ("COPPA") requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 16 years of age; if you are a child under 16 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 16 years of age, we will delete that information as quickly as possible. If you believe that a child under 16 years of age may have provided us personal information, please contact us at privacy@ernesta.com.WHAT ARE THE BASICS OF USING ERNESTA?
You may be required to sign up for an account, which may include selecting a password and user name ("Ernesta User ID"), and providing us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Ernesta User ID a name that you do not have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a "Third Party Account"), such as those offered by Google, Facebook and Twitter. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.You represent and warrant that you are an individual of legal age to form a binding contract. If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization's or entity's behalf and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization or entity).You will only use the Services and Products in a manner that complies with all laws that apply to you. If your use of the Services or Products is prohibited by applicable laws, then you are not authorized to use the Services. We are not responsible if you use the Services or Products in a way that breaks the law.You may not share your Ernesta User ID, account or password with anyone, and you must protect the security of your Ernesta User ID, account, password and any other access tools or credentials. You are responsible for any activity associated with your Ernesta User ID and account. If you become aware of unauthorized access to your account, change your password and notify our Support team immediately at support@ernesta.com .WHAT ABOUT MESSAGING?
As part of the Services, you may receive communications from Ernesta or through the Services, including messages that Ernesta sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Ernesta to send you information that we think may be of interest to you, which may include Ernesta using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Ernesta. You agree to indemnify and hold Ernesta harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to your breach of the foregoing.ARE THERE RESTRICTIONS IN HOW I CAN USE THE SERVICES?
You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Ernesta);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Ernesta;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of your Ernesta User ID, account or anyone else's (such as allowing someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or "spam" on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services' infrastructure);
(h) "crawls," "scrapes," or "spiders" any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) downloads, modifies, copies, distributes, displays, reproduces, publishes, creates derivative works from, stores or offers for sale any Content or information contained on or obtained from or through the Services;
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Products or Services;
(k) uses, reproduces or removes any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services; or
(l) is not otherwise expressly permitted in these Terms.
WHAT ARE MY RIGHTS IN THE SERVICES?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the "Content") are protected by copyright and/or other intellectual property laws. You must abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you may not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's (including Ernesta's) rights.Subject to these Terms, we grant each user of the Services a personal, non-exclusive, non-sublicensable and non-transferable right to access and use the Services. This license does not include any resale or commercial use of the Services; any collection or commercial use of any photographs or other materials published on the Services; or any non-personal use of our Product names, listings, descriptions or prices. You understand that Ernesta owns the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but regardless of whether these functionalities exist, all the restrictions in this section still apply.WHAT ABOUT ANYTHING I CONTRIBUTE TO THE SERVICES - DO I HAVE TO GRANT ANY LICENSES TO ERNESTA OR TO OTHER USERS?
User SubmissionsAnything you post, upload, share, store, or otherwise provide through the Services is your "User Submission". Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote any non-Ernesta commercial activity, fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.LicensesIn order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions (see below for more information). Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.By submitting User Submissions through the Services, you hereby grant Ernesta a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any format and through any channel (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our users do not otherwise affect your ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts. If Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a "share" button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize Ernesta to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.Finally, you understand and agree that Ernesta, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.WHAT IF I SEE SOMETHING ON THE SERVICES THAT INFRINGES MY COPYRIGHT?
In accordance with the DMCA, we've adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Ernesta's Designated Agent to Receive Notification of Claimed Infringement (our "Designated Agent," whose contact details are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
(c) terminate such content provider's access to the Services if he or she is a repeat offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
WHO IS RESPONSIBLE FOR WHAT I SEE AND DO ON THE SERVICES?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren't liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.The Services may contain links or connections to third-party websites or services that are not owned or controlled by Ernesta. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Ernesta is not responsible for such risks.Ernesta has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Ernesta will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.DO THE PRODUCTS OR SERVICES COST ANYTHING?
Products are offered at the prices set forth on our website and you may choose to purchase Products through the https://www.ernesta.com website. Ernesta may limit or cancel quantities of Products purchased, and it reserves the right to refuse any order. In the event Ernesta needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. The prices displayed are quoted in U.S. currency and are valid only in the United States. Prices are subject to change at any time. Sales tax will be determined by the shipping address of the order and will automatically be added to the order. Ernesta is required by law to apply sales tax to orders to certain states. Purchased Products will be shipped to the shipping address of the order. Any payment terms presented to you in the process of purchasing Products are deemed part of these Terms.Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.a. Billing. We use a third-party payment processor (the "Payment Processor") to bill you through a payment account linked to your account on the Services (your "Billing Account"). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. Currently, we use Stripe, Inc. as our Payment Processor. You can access Stripe's Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policyat https://stripe.com/us/privacy. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to purchase Products, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any such Products in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your "Payment Method"). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
b. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
c. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS HERE.
d. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. What if I want to delete my account?
WHAT ELSE DO I NEED TO KNOW?
Cancellation of Order. All our orders are custom cut and prepared exclusively for you. Accordingly, as set forth in our Cancellation, Refund and Exchange Policy, you may only cancel an order within the first twenty-four (24) hours of purchasing a product from us. In order to cancel an order please contact us at support@ernesta.com.Refunds and ExchangesAll our orders are custom cut and prepared exclusively for you. Accordingly, as set forth in our Cancellation, Refund and Exchange Policy, our policy is to only provide a refund if an order is cancelled within the first twenty-four (24) hours after an order is placed with us. After that twenty-four (24) hour period, we will not provide a refund or permit an exchange of our products (except pursuant to our Limited Warranty).Limited WarrantyWhat is Covered By The Limited WarrantyThis Limited Warranty covers the products purchased through our website at https://www.ernesta.com ("Products"). Any Product purchased from Ernesta will be free of material defects in materials and workmanship for a period of thirty (30) days from the date of delivery ("Warranty Period"), when used in an indoor, non-commercial setting. This Limited Warranty extends only to an original owner or original giftee of the Product and is not transferable to any future owner of the Product. This Limited Warranty is limited to the United States and does not apply to any Products purchased or used outside of the United States. Certain additional exclusions apply, as further described below.If the Product fails to conform to this Limited Warranty during the Warranty Period, Ernesta will, at its sole discretion, either (a) repair or replace any defective Product or component; or (b) refund the money actually paid (less any shipment costs) by the original purchaser for the Product. Repair or replacement may be made with a new product, at Ernesta's sole discretion. If the Product is no longer available, Ernesta may, at Ernesta's sole discretion, offer a replacement with an alternative Product. THE FOREGOING IS ERNESTA'S SOLE OBLIGATION AND YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS LIMITED WARRANTY.Any Product that has either been repaired or replaced under this Limited Warranty will be covered by the terms of this Limited Warranty for the longer of (a) thirty (30) days from the date of delivery of the repaired Product or replacement Product, or (b) the remaining portion of the Warranty Period for the original purchase.This Limited Warranty does not cover the following (collectively "Ineligible Products"): Products that have defects or damage arising or resulting from: (a) modifications, alterations, tampering, or improper maintenance or repairs of Products by you or any person or third party other than Ernesta or its designee following delivery to you; (b) handling, storage, installation, testing, or use not in accordance with these Terms or other written care instructions provided by Ernesta; (c) abuse or misuse of the Product, improper or abnormal use, or neglect; or (d) events outside of Ernesta's reasonable control, including Acts of God, lightning, flood, tornado, earthquake, or hurricane. This Limited Warranty also does not cover changes in the appearance of the Product resulting from ordinary use, including the natural alteration of colors or materials resulting from ordinary use over time.This Limited Warranty does not apply to our website, services or applications, any content contained therein or anything other than the Products. This warranty gives you specific legal rights, and you may also have other rights which vary from State to State. Likewise, some of the limitations in this Limited Warranty may not apply in certain states. The terms of this Limited Warranty will apply to the extent permitted by applicable law. For a full description of your legal rights you should refer to the laws applicable in your jurisdiction and you may wish to contact a relevant consumer advisory service.Making A Claim Under The WarrantyIn order to make a claim under this Limited Warranty, the owner of the Product must notify Ernesta by contacting us at support@ernesta.com or writing to us at Customer Service - Warranty, Ernesta Home, Inc., 322 8th Avenue, Suite 601, New York, New York 10001 during the Warranty Period. Each claim for a warranty must include the name of the product, the order number and a description of the alleged failures. Ernesta will have no warranty obligations with respect to a Product that it deems, in its reasonable discretion, to be an Ineligible Product (defined above).Warranty Disclaimer. EXCEPT AS EXPLICITLY SET FORTH IN THE LIMITED WARRANTY ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ERNESTA AND ITS LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (ERNESTA AND ALL SUCH PARTIES TOGETHER, THE "ERNESTA PARTIES") DISCLAIM ALL AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED OR OTHERWISE) CONCERNING THE SERVICES OR PRODUCTS, AND THE ERNESTA PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES OR ANY CLAIMS, ACTIONS, SUITS, COSTS, EXPENSES, DAMAGES OR LIABILITIES ARISING OUT OF USE OF THE SERVICES OR PRODUCTS. THE ERNESTA PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS. EXCEPT AS EXPLICITLY SET FORTH IN THE LIMITED WARRANTY ABOVE, PRODUCTS AND SERVICES PURCHASED OR OFFERED (WHETHER OR NOT FOLLOWING SUCH RECOMMENDATIONS AND SUGGESTIONS) THROUGH THE SERVICES ARE PROVIDED "AS-IS" AND WITHOUT ANY WARRANTY OF ANY KIND FROM THE ERNESTA PARTIES OR OTHERS (UNLESS PROVIDED EXPRESSLY AND UNAMBIGUOUSLY IN WRITING BY A DESIGNATED THIRD PARTY FOR A SPECIFIC PRODUCT).ALL IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS THAT CANNOT BE MODIFIED OR DISCLAIMED UNDER APPLICABLE LAW ARE HEREBY LIMITED TO THE WARRANTY PERIOD SET FORTH IN THE LIMITED WARRANTY ABOVE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.DISCLAIMER AS TO SERVICES AND CONTENT. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED BY ERNESTA (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES SUCH AS NEW JERSEY DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE ERNESTA PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR INJURIES, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID BY YOU TO ERNESTA IN CONNECTION WITH THE PRODUCT(S) SUBJECT TO THE APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.Indemnity. You agree to indemnify and hold the Ernesta Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).Successors; Assignment. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Ernesta's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations in our sole discretion without notice to you or your consent.Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.Arbitration Agreement
. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Ernesta and limits the manner in which you can seek relief from Ernesta.(a) Third-Party Beneficiaries: Both you and Ernesta acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Ernesta's officers, directors, employees and independent contractors ("Personnel") are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(b) Arbitration Rules; Applicability of Arbitration Agreement. You and We agree that before initiating any Dispute or arbitration proceeding, the parties shall use their best efforts to resolve any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. You may initiate such good-faith negotiations by sending a Notice of Dispute to legal@ernesta.com or sending us a notice at Legal Department, Ernesta Home, Inc., 322 8th Avenue, Suite 601, New York, New York 10001. We may initiate such good-faith negotiations by sending a Notice of Dispute to the email and/or mailing address you have provided to us. Any party who initiates such negotiations shall plainly state the nature and basis of their dispute, claim, question, or disagreement, as well as the relief that party seeks. If the parties are unable to resolve the Dispute 60 days from the initiation of negotiations, then you or We may initiate a binding arbitration proceeding in New York County, New York. A party who desires to initiate arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Streamlined Arbitration Rules (the "Rules") then in effect. The Rules are available at www.jamsadr.com or by calling 1-800-352-5267. The arbitration will proceed in the English language. Except to the extent modified by these Terms, the arbitration shall proceed in accordance with the Rules then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(c) Costs of Arbitration. Except as set forth in these Terms, the Rules will govern payment of all arbitration fees. If you assert a claim against Ernesta, you will be responsible for paying a $250 consumer filing fee. Ernesta will pay for all other arbitration fees for claims less than ten thousand ($10,000) dollars. If your Dispute is for less than ten thousand ($10,000) dollars (including attorneys' fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, Ernesta will reimburse your initial filing fee. Ernesta will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(d) Small Claims Court; Infringement. Either you or Ernesta may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any 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.
(e) Waiver of Jury Trial. YOU AND ERNESTA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Ernesta are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Ernesta over whether to vacate or enforce an arbitration award, YOU AND ERNESTA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(f) Waiver of Class or Consolidated Actions. YOU AND ERNESTA AGREE THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Ernesta is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (h) below.
(g) Opt-out. You have the right to opt out of the arbitration agreement in these Terms by sending written notice of your decision to opt out to the following address: 322 8th Avenue, Suite 601, New York, NY 10001, United States postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms' arbitration agreement.
(h) Exclusive Venue. If you send the opt-out notice in (g), and/or in any circumstances where the foregoing arbitration agreement permits either you or Ernesta to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Ernesta agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. With the exception of that prohibition, if an arbitrator or court of competent jurisdiction decides that any part of this section is invalid or unenforceable, the remaining provisions of this section will still apply. This arbitration agreement will survive the termination of your relationship with Ernesta.
(i) If Ernesta changes any of the terms of this Arbitration Agreement after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending written notice of your decision to opt out to the address set forth in subsection (g) above within 30 days of the date such change became effective, as indicated on the "Last Updated" date on these Terms on Ernesta's website (www.ernesta.com), or the date of Ernesta's notice to you notifying you of such Change, whichever came first. By rejecting any change, You are agreeing that You will arbitrate any Dispute between you and Ernesta in accordance with the terms of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms by not rejecting those changes as set forth in this subsection).