All references to “Sparkle Cut” “we”, “us” or “our” within these Terms means Sparkle Cut Diamonds, Inc. All references to “you” or “your,” means any viewer or user of a Site. Our Sites are offered and available to users in the United States who are of legal age where they live. By using a Site, you represent and warrant that you are of legal age and have the capacity and authority to agree to these Terms and that you reside in the United States. If you do not meet these requirements, you should not access or otherwise use a Site.
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND OBLIGATIONS AND OUR DISCLAIMERS, EXCLUSIONS, LIMITATIONS OF LIABILITY, AND YOUR INDEMNITY OBLIGATION. These Terms also require the use of binding arbitration to resolve disputes rather than jury trials or group/class actions as described in Section 14 below. Please follow the instructions in Sections 14 and 15 below if you wish to opt out of this provision. BY ACCESSING OR USING ANY OF OUR SITES, YOU ARE ENTERING INTO A LEGAL CONTRACT WITH US REGARDING YOUR USE OF THE SITE AND YOU AGREE TO BE BOUND BY THESE TERMS AND ALL ADDITIONAL POLICIES REFERENCED IN THESE TERMS. IF YOU DO NOT AGREE TO ANY PORTION OF THESE TERMS, YOU SHOULD NOT ACCESS OR OTHERWISE USE A SITE OR PURCHASE A PRODUCT FROM US.
1. Updates and Changes
We reserve the right to revise these Terms or any policy on our Sites at any time. Any changes or modifications will be effective immediately upon posting the revisions on a Site. By continuing to access or use a Site following the posting of a change or modification, you are agreeing to the change or modification. Please check these Terms, and our policies on our Sites, regularly to understand the terms and conditions that apply when you use our Sites or purchase our products. The most recent revisions to these Terms will appear at the end of these Terms.
3. Terms of Sale
3.1 Sale Terms. Your purchase of our products is also governed by our Terms of Sale (the “Sale Terms”) located at www.sparklecut.com/pages/terms. The Sale Terms are hereby incorporated into these Terms by reference. You are responsible for reading, understanding, and abiding by these Sales Terms. Please review our Sale Terms for additional details about shipping, delivery, applicable taxes and return options. All pricing and shipping information is subject to change without notice. Stated prices for our products do not include any duties, sales, use, value added, and excise, federal, state, local or other taxes which will apply in accordance with applicable laws. We do not honor inaccurate or erroneous pricing and will not be responsible for errors or omissions regarding product availability, prices or other information.
3.2 Return Policy. We hope that you are completely satisfied with your purchase. If you are not completely satisfied and wish to return an item you purchased, please follow our Return Policy. Our Return Policy, as it may change from time to time, is a part of our Sale Terms. All returns must be accompanied by the original documents sent to you.
3.3 Diamond Documentation. Each of our diamonds is shipped to you with a diamond grading documentation and a light performance certificate. These are detailed documents for each particular diamond and created by industry recognized, third-party diamond laboratories. Because of this, we require each diamond grading document and light performance certificate to be included with each returned diamond. If you do not include these documents with your return, you will be charged a replacement fee of US $88.00.
4. Ethical Sourcing
We believe ethics matter and support ethical sourcing of conflict free diamonds by following the Kimberley Process. We are proud of our ethical sourcing policy located at www.sparklecut.com/pages/ethical-sourcing and we encourage you to read more about it.
5. Product Availability and Pricing
All products displayed on our Sites are typically in stock and available and we make significant efforts to ensure the pricing on our Sites is accurate at the time of purchase. From time to time an inventory error or a pricing error may occur due to system or typographical errors. We do not honor inaccurate or erroneous pricing and will not be responsible for errors or omissions regarding product availability, prices or other information.
If an error has occurred, and you have a placed an order with us, we reserve the right to cancel the order and refund the fee listed on the check-out receipt in the same manner as payment was made. If an order is canceled, the refund price represents the sole and exclusive damages available to you. We do not negotiate prices on our products and all our prices are final subject to the foregoing. Our prices are also subject to change without notice and may change prior to your purchase.
6. Product Descriptions
We make all reasonable efforts to display the products listed for sale on our Sites as accurately as possible. We use technology to view our products on our Sites at actual size, magnified, or in a 360 degrees video. As a result, some products may appear larger or smaller than their actual size and color and size may vary slightly. It is your responsibility to review the listed size and weight of each stone as well as the supporting 3rd-party diamond grading report and/or light performance certification and not rely on photographs or images when determining your purchase. We try to provide as much information and detail about products as possible so you can see the color, size, detail and shape of a product. However, we cannot guarantee that your monitor’s display of any product’s color, size, detail or shape will be accurate. Because of this, we do not represent or warrant that product descriptions, images or information is 100% accurate.
If a product offered by us is received and not as described, your sole remedy is to return it in unused condition for a full refund in accordance with our 40-Day Free Return Policy set forth in our Sale Terms.
7. Your Account
Certain sections of our Sites may require you to register or create an account with us. If you are required to register or create an account to use our Sites, you agree to provide at all times true, accurate, current and complete information about yourself as prompted by our registration processes. You are responsible for maintaining the confidentiality of your username, password and other information you provided associated with your account, and for all activities that occur through the use of your account and password. You must treat such information as confidential, and you must not disclose such information to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Sites or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. We reserve the right to refuse service on our Sites, terminate your account, remove content or cancel orders in our sole discretion with or without cause.
8. Use of Sites and Content
The Sites are only for your personal use. You may not use a Site for commercial purposes or in any way that is unlawful, or harms us or any other person or entity. All content, materials, functions, information displayed, performed or otherwise accessible through the Sites, including, without limitation, text, designs, databases, images, photographs, illustrations, video and audio clips, artwork, graphic material, animation, and any copyrightable and/or patentable elements of the foregoing created by us, or our partners and the selection and arrangements thereof, and all of our trademarks, service marks, slogans, logos, trade dress and patents (collectively, the “Content”) are the property of us, our partners, affiliates, third party licensors, distributors, and suppliers and/or any successors and assigns and are protected, without limitation, by United States and other international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Provided you comply with these Terms, you are granted a personal, limited and non-exclusive right and license to access and use the Sites and the Content for your personal, informational, and non-commercial use to browse and for on-line shopping. Your license is subject to these Terms and does not including any right to (a) download or copy pages from any Site, except as may occur through the normal caching function of your browser and except to download, copy or print a single copy of any page from a Site for your personal, non-commercial purposes provided you do not remove, modify, or alter any copyright and proprietary rights notices that may be present; (b) download or copy a Site or Content for the commercial benefit of you or a third party; (c) make any resale or commercial use of a Site or the Content; (d) use a Site or Content in a manner that suggests an association with us; (e) create any derivative work of a Site or Content or make any modifications to any Content other than as expressly permitted by us; (f) use any data mining tools, robots, or similar data-gathering and extraction devices with respect to a Site and the information contained thereon; (g) frame or use framing techniques to enclose any trademark, logo, trade name or other Content (including images, text, page layout, or form) on a Site; (h) use any meta tags or any other “hidden text” utilizing the trademarks, logos, trade names or the Content; or (i) use a Site in any way which interferes with the normal operation of our Sites including but not limited to (x) attempting to circumvent the security systems of a Site, or to gain access to a Site in a fraudulent manner, or gain access to any other user’s accounts, password, codes and/or personal information by any means whatsoever; (y) uploading or submitting any data or information that contains viruses or any other computer code, corrupt files or programs designed to interrupt, destroy or limit the functionality or disrupt any software, hardware, telecommunications, networks, servers or other equipment or otherwise tampers with, impairs or damages a Site or any connected network; or (z) otherwise accessing or using a Site in any manner that violates applicable law.
Any use of our Sites or Content other than as specifically authorized herein, without our prior written permission is strictly prohibited and will terminate the license granted herein. No right, title or interest in or to our Sites or any Content is transferred to you, and all rights not expressly granted are reserved by us. We make revoke the foregoing license at any time without notice and with or without cause.
We do not warrant or represent that: (a) any Content and any other information provided from or on a Site is accurate or complete; (b) the Content is up-to-date or current; (c) we have any obligation to update any Content; (d) the Content is free from technical inaccuracies or programming or typographical errors; (e) the Content is free from changes caused by a third party; (f) your access to a Site will be free from interruptions, errors, computer viruses or other harmful components; (g) any information obtained in responses to questions asked through a Site is accurate or complete; and/or (h) the Content is non-infringing of any third party’s intellectual property rights.
Nothing on our Sites or in these Terms should be construed as any license or right to use any trademarks or service marks displayed on the Sites without the express written permission of us or the trademark or service mark owner. None of “sparklecut.com,” “Sparkle Cut,” “Promises Kept” or any other trademark, service mark, domain name or logo displayed on our Sites may be used for any purpose without our or other proper prior written consent. None of the foregoing may be used as a “hot” link to any other website without our or other proper prior written consent.
10. User Submitted Content
Certain areas of our Sites may now or in the future permit you to submit and send to us “User Content” and permit the hosting, sharing, downloading, publishing and/or republishing of such User Content. User Content means stories, statements, messages, feedback, comments, suggestions, submissions or ideas, testimonials, reviews, ratings, photographs, pictures, images, videos, audio files, text files, your and/or other persons’ names, likenesses, voices, actions, appearances, performances and/or other biographical information or material, and/or other similar materials of any nature that you submit, post, upload, embed, display, communicate or otherwise submit to our Sites. You hereby grant (or warrant that the owner of such rights has expressly granted) to us a worldwide, fully-paid, royalty-free, perpetual, irrevocable, transferable, sub-licensable and nonexclusive right and license to use, copy, reproduce, modify, edit, adapt, publicly display, publish, broadcast, create derivative works from, publicly perform, transmit and distribute such User Content for any purpose and in any form, without any compensation, notice, or attribution to you or any other person, in connection with operating or providing our Sites.
By submitting User Content, you represent and warrant that you own your User Content and have all necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to grant us a license to use the submitted User Content as contemplated by these Terms and that use of your submission of User Content will not infringe, misappropriate or violate a third party’s intellectual property rights, rights of publicity or privacy, or any other rights.
WE DO NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY USER CONTENT YOU SUBMIT. TO PROTECT YOUR PRIVACY AND THE PRIVACY OF OTHERS, YOU AGREE THAT YOU WILL NOT PROVIDE ANY USER CONTENT THAT CONTAINS PERSONALLY IDENTIFIABLE INFORMATION (SUCH AS NAME, PHONE NUMBER, EMAIL OR MAILING ADDRESS, SOCIAL SECURITY NUMBER, ETC.) BELONGING TO YOU OR ANYONE ELSE. UPLOADING IMAGES OR VIDEOS OF OTHER PEOPLE WITHOUT THEIR PERMISSION IS STRICTLY PROHIBITED.
YOU ARE SOLELY RESPONSIBLE FOR USER CONTENT SUBMITTED OR POSTED BY YOU AND THE CONSEQUENCES OF POSTING OR PUBLISHING IT. We do not endorse the content of such User Content. We expressly disclaim any and all liability in connection with User Content. You acknowledge that we have the right to pre-screen User Content and the right (but not the obligation) in our sole discretion to refuse, move, and/or remove User Content made available on or through the Sites. You agree that you have no expectation of any review, compensation or consideration of any type for User Content that you submit.
11. Third Party Content and Applications
Our Sites may now or in the future provide links to other websites maintained by third parties and may contain third party content through framing or other methods (collectively, the “Third Party Content”). Additionally, our Sites may include features, functionality, program, services or applications provided by third parties (collectively, the “Third Party Applications”). We do not monitor any Third Party Content and Third Party Applications and can make no guarantee as to the accuracy or completeness of such Third Party Content and Third Party Applications. We have no control over the contents of any Third Party Content and Third Party Applications and disclaim all liability and responsibility for them or for any loss or damage that may arise from your use of them (including any use of further links or applications contained in any Third Party Website or Third Party Applications). We make no representation or warranty in connection with any Third Party Content and Third Party Applications, which at all times and in each instance are provided on an “AS IS” and “AS AVAILABLE” basis. If you decide to access any Third Party Content and Third Party Applications, you do so entirely at your own risk and subject to the terms and conditions of use and privacy policies for such Third Party Content and Third Party Applications, which may or may not be posted by such third parties on their respective websites or applications and which we are not obligated to provide to you. Any statements and opinions expressed in content provided by any Third Party Content and Third Party Applications is solely the responsibility of the third party and do not necessarily reflect our opinion. Any reliance you place on such content is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such content by you or any other visitor to such Third Party Content and Third Party Applications, or by anyone who may be informed of any of their contents.
12. Disclaimer of Warranties and Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED IN OUR SALE TERMS, THE SITES, THE CONTENT CONTAINED ON THE SITES AND THE PRODUCTS PROVIDED ON OR IN CONNECTION THEREWITH, ARE PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ALL OF WHICH ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE FITNESS, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT OR DATA ACCURACY. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE SITES, AND ANY CONTENT THEREON, IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE AND WE DISCLAIM ALL LIABILITY ARISING THEREFROM. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND THAT YOUR USE OF THE SITES AND THE CONTENT THEREON, OR OUR OPERATION OF THE SITES, ARE OR WILL REMAIN UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT WEB PAGES ON THE SITES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEVICES. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SITES, THE CONTENT THEREON OR ANY PRODUCTS OBTAINED THROUGH THE WEBSITES WILL MEET YOUR NEED OR EXPECTATIONS.
IN NO EVENT SHALL SPARKLE CUT, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS, SERVICE PROVIDERS OR AGENTS (COLLECTIVELY, THE “SPARKLE CUT GROUP”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF PROFITS OR SAVINGS, REPLACEMENT COSTS, LOSS OF USE OR INTERRUPTION, OR ANY OTHER DAMAGES, LOSSES, LIABILITIES OR CLAIMS OF ANY KIND, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO THE USE OR THE INABILITY TO USE THE SITES OR THE CONTENT CONTAINED ON OR ACCESSED THROUGH OUR SITES, OR FOR ANY CLAIM IN ANY WAY RELATED TO YOUR USE OF OUR SITES INCLUDING AS RELATED TO USER CONTENT. WE ARE NOT LIABLE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY YOUR USE OR MISUSE OF THE SITES, THE CONTENT CONTAINED ON OR ACCESSED THROUGH OUR SITES, OR ANY PRODUCT YOU PURCHASE. THIS LIMITATION OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY OR RESULTING FROM RELIANCE BY YOU ON ANY CONTENT OR INFORMATION OBTAINED FROM THE SITES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN IMPLIED WARRANTIES, LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM ONE JURISDICTION TO ANOTHER.
TO THE EXTENT THAT YOU COMMUNICATE WITH ANY OF OUR REPRESENTATIVES, THE STATEMENTS, PROMISES OR ACTIONS TAKEN BY SUCH REPRESENTATIVE SHALL NOT LIMIT OR OTHERWISE MODIFY THE TERMS OF OUR DISCLAIMERS, EXCLUSIONS OR LIMITS OF LIABILITY IN THESE TERMS AND THIS DISCLAIMER, LIMITS OF LIABILITY AND THESE TERMS SHALL APPLY TO ANY INFORMATION PROVIDED TO YOU THROUGH SUCH REPRESENTATIVE DIRECTLY OR THROUGH OUR SITES.
You agree to defend, indemnify and hold harmless all members of the Sparkle Cut Group from and against any claims, demands, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to (a) your violation of these Terms; (b) any User Content you post, store or otherwise transmit on or through our Sites; (c) your use of any Content obtained from our Sites; or (d) your use of the Sites, including, but not limited to, any actual or threatened suit, demand or claim made against any member of the Sparkle Cut Group arising out of or relating to the User Content you posted, your conduct, your violation of these Terms or your violation of the rights of any third party.
14. Dispute Resolution and Arbitration
14.1 PLEASE READ THIS SECTION CAREFULLY; IT CONTAINS MANDATORY, NON-PERMISSIVE ARBITRATION REQUIREMENTS. FOLLOW THE INSTRUCTIONS IN SECTION 15 BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
14.2.1. You and Sparkle Cut agree to arbitrate all disputes and claims that in any way arise from or relate to these Terms (including the Sale Terms), their interpretation, or a breach hereof (a “Dispute”). This agreement to arbitrate is intended to be interpreted broadly to cover, without limitation: claims arising from or relating to any aspect of your and Sparkle Cut’s relationship created by or involving these Terms, regardless of legal theory; claims that arose before you accepted these Terms, such as (for example) claims related to statements made in connection with these Terms; claims that arise after you have purchased any of our products on our Sites, claims against Sparkle Cut, its respective affiliates, providers, contractors, and agents as well as the respective officers, directors, employees, shareholders, providers, contractor, agents, predecessors, successors, and assigns of Sparkle Cut, such entities, you or your heirs or legal representative; and, claims relating to the validity, interpretation, and scope of this arbitration agreement.
14.2.2. This arbitration agreement does not preclude you or Sparkle Cut from bringing an individualized action in small claims court, seeking an individualized preliminary injunction or temporary restraining order in any court with competent jurisdiction pending arbitration, or attempting to resolve the Dispute privately. You or Sparkle Cut also may seek injunctive or other equitable relief to protect your or Sparkle Cut’s trade secrets and intellectual property rights, or to prevent loss or damage to Sparkle Cut, in any court with competent jurisdiction. This arbitration agreement does not bar you from bringing issues to the attention of federal, state or local agencies, who may, if legally permitted, seek relief against Sparkle Cut on your behalf.
14.2.3. This arbitration agreement shall be enforceable under and subject to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
14.3 Notice of Disputes; Procedure for Arbitration.
14.3.1. If you or Sparkle Cut intend to seek arbitration of a Dispute, that party shall provide written notice pursuant to Section 15 hereof. All Disputes shall be finally settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its Consumer Arbitration Rules (the “Rules”). If you file arbitration, you will incur a nonrefundable filing fee, payable on filing, pursuant to the fee schedule set forth in the Rules. Other than such filing fee, Sparkle Cut will pay AAA’s fees and the arbitrator’s costs and expenses, unless the arbitrator determines you filed a Dispute that is frivolous or for sole purpose of being vexatious or to annoy.
14.3.2. AAA’s rules and procedures governing the filing and process of AAA consumer arbitration, as well as the AAA consumer arbitration fee schedule, can be found in the Rules, available at www.adr.org. You also may contact AAA at 1-800-778-7879. The Rules and other AAA information may be amended from time to time and are subject to change.
14.3.3. The arbitration will be heard and determined by a single neutral arbitrator selected by the AAA who is a retired judge or a lawyer with not less than 15 years of experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the arbitration in accordance with the Rules. The arbitrator will apply applicable law (pursuant to Section 18 hereof) and the provisions of this arbitration agreement and the Terms will determine any Dispute according to the applicable law and facts based upon the record and no other basis. The arbitrator’s decision will consist of a written statement stating the disposition of each claim of the Dispute, and will provide a statement of the essential findings and conclusions on which the decision and award (if any) is based. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
14.3.4. If an in-person arbitration hearing is required, it will be conducted at the AAA’s office in a location reasonably convenient to and agreed upon by you and Sparkle Cut, which agreement shall not be unreasonably withheld by either you or us. If the parties are unable to agree on a location, the arbitrator shall decide the location.
14.3.5. In arbitration, as in court, the arbitrator must honor the terms of this arbitration agreement and the Terms and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (1) THERE IS NO JUDGE OR JURY, (2) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (3) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. You and Sparkle Cut agree the arbitration shall be confidential. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing.
14.3.6. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR SPARKLE CUT WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR SPARKLE CUT MUST COMMENCE IT BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 16 WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED, except that Sparkle Cut may bring an action at any time relating to its intellectual property rights.
14.3.7. If AAA is unable to administer a Dispute, the Dispute shall be finally settled by another arbitration organization as you and Sparkle Cut shall choose. If you and Sparkle Cut cannot agree on such organization, a court of competent jurisdiction shall select one. Arbitration shall then proceed in accordance with that organization’s applicable rules.
14.4 Waiver of Jury Trial and Class Actions. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND SPARKLE CUT EACH ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL, OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND SPARKLE CUT EACH AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE, OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THIS ARBITRATION AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION AGREEMENT ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND SPARKLE CUT WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY, AND ALSO WAIVE RIGHTS TO A TRIAL BY JURY. IF FOR ANY REASON ANY PROVISION OF THIS ARBITRATION AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, IT SHALL BE SEVERED AND THE REMAINING PROVISIONS ENFORCED AS THOUGH THE OFFENDING PROVISION WERE NOT INCLUDED HEREIN.
15. Arbitration Opt Out Right
15.1 YOU HAVE THE RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE BY PROVIDING WRITTEN NOTICE TO SPARKLE CUT AS SET FORTH IN SECTION 16 OF YOUR INTENTION TO DO SO, WITHIN 30 DAYS OF THIS AGREEMENT BECOMING BINDING. Such notification must include: (a) your name; (b) your email address; (c) your mailing address, and (d) a statement that you do not wish to resolve Disputes through arbitration. This notification affects this arbitration agreement; if you previously entered into other arbitration agreements with Sparkle Cut or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and Sparkle Cut. 15.2 IN THE EVENT THAT YOU PROPERLY OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH THIS SECTION 15: YOU AND SPARKLE CUT EACH HEREBY (A) IRREVOCABLY AGREE THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING (“SUIT”) ARISING OUT OF OR IN CONNECTION WITH OR DUE TO ANY CLAIM OR DISPUTE THAT HAS ARISEN OR MAY ARISE BETWEEN YOU AND SPARKLE CUT MUST BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN ST. JOHN’S COUNTY, STATE OF FLORIDA, IRRESPECTIVE OF CHOICE-OF-VENUE RULES; (B) CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURT IN ANY SUCH SUIT; (C) WAIVES ANY OBJECTION THAT YOU OR SPARKLE CUT MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT; (D) CONSENT TO SERVICE OF PROCESS IN ACCORDANCE WITH THE NOTICE PROVISIONS IN SECTION 16; AND (E) WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH SUIT, AND, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY SUIT ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
All notices required to be given to us pursuant these Terms shall be deemed to have been duly given if in writing emailed to us, at: By email: email@example.com All notices required to be given to you shall be deemed to have been duly given if in writing and sent to the e-mail address on file with us. You are responsible to provide us with any changes to your e-mail address.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
18. Governing Law
All matters relating to our Sites and these Terms and any dispute or claim arising therefrom or related thereto, shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction).
19. Local Laws
We make no representation that the Sites are appropriate or available for use in jurisdictions outside the United States. Access to a Site from jurisdictions where such access is illegal is prohibited. If you choose to access a Site from other jurisdictions, you do so at your own initiative and are responsible for compliance with applicable laws.
We may terminate your right to access or use secured portions of the Sites at any time, without notice, for conduct that we believe violates these Terms and/or is harmful to other users of the Sites, to us, to our partners to the business of our internet service provider, or to other information providers.
21. Additional Remedies
You acknowledge that your conduct that is inconsistent with the provisions of these Terms may cause us irreparable damage for which remedies other than monetary relief may be inadequate. In such instances, you agree that we may seek injunctive or other equitable relief seeking to restrain such conduct without the necessity of proving actual harm or posting a bond.
22. Contact Information
We are always happy to hear from you. Please do not hesitate to contact us. All questions, concerns, comments, and other communications relating to our Sites can be directed to: firstname.lastname@example.org or at the phone numbers on our Sites.
Effective Date: October 23, 2018