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Tipsy Elves LLC - Terms and Conditions

Effective: September 20, 2021
Last updated: September 20, 2021

Hey there!

Welcome and thank you for visiting Tipsy Elves. These Terms and Conditions (“Terms”) apply to your purchase of Tipsy Elves clothing and accessories (collectively, our “Products”) and to your access to and use of the website and other online products and services (collectively, our “Services”) provided by Tipsy Elves LLC (“Tipsy Elves,” “we” or “us” ).

1. Acceptance of the Terms

PLEASE READ THESE TERMS BEFORE USING OUR SERVICES OR PURCHASING OUR PRODUCTS AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. BY ACCESSING OR USING OUR SERVICES OR PURCHASING OUR PRODUCTS, YOU AGREE TO AND ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 15, DO NOT ACCESS OR USE OUR SERVICES OR PURCHASE OUR PRODUCTS.

We reserve the right to change these Terms at any time, without any prior notice to you. Any updates to these Terms will be posted or linked to from our website, including at www.tipsyelves.com, and will apply to you prospectively, so you should check back each time you use our Services so you are aware of any changes, as they are binding on you.

2. Accessing the Services

In order to accept these Terms and to access and use our Services you must be at least 18 years of age. If you are between 13 and 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms. You hereby affirmatively represent that (a) you are at least 18 years of age; (b) you have the consent of your parent(s) or guardian(s) to access and use the Services if you are under 18 years of age; (c) you have all the applicable rights and authority to grant Tipsy Elves the rights granted herein; and (d) you have read, understood, and agree to be bound by these Terms.

3. User Registration and Account Protection

3.1 Account creation

You can use our Services or purchase our Products without creating a user account (“Account”). If you choose to create an Account, you must provide us with accurate and complete registration information as prompted during the registration process. Each Account registration is for a single user only. You may not misrepresent your identity or your affiliation with any person or organization and you may never use another user’s Account for any purpose whatsoever. If you register for an account, you must provide accurate account information and promptly update this information if it changes. If you associate your Account with another service or social media service functionality, such as Facebook Connect, you expressly authorize Tipsy Elves and the relevant third party to share and store certain information about you, including personal information, depending on your account settings with such third party. Please note that you will be bound by the terms of use and privacy policies of any such third parties, in addition to our Terms and privacy policyPrivacy Policy.

3.2 Account Protection

You are responsible for maintaining the security and confidentiality of your username and password and may not share your Account information with third parties or allow third parties to use your Account. If you believe an unauthorized person has obtained your password or accessed your Account you must notify us immediately via email at [email protected] with “Unauthorized Use” in the subject line. We will not be liable for any loss that you may incur as a result of someone else using your password or Account, either with or without your knowledge or permission. However, you may be held liable for any losses we or another related party incur due to someone else using your Account.

3.3 Account termination

You may terminate your Account at any time by sending an e-mail to [email protected] with “Cancel Account” in the subject line. Please allow seven (7) days for termination to take effect. Following termination, we may delete any or all of the information associated with your Account. You have no recourse with regard to any information that we delete or functionality we remove upon Account termination. We further disclaim any value you may attribute to any of your data stored on our servers. Our rights under the Terms will survive any termination of your Account or cessation of your use of our Services.

4. Terms of Sale

The terms in this Section 4 apply if you purchase any Products using the Services.

4.1 Payment and Billing Information

By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and you authorize us to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order. If you have any concerns or objections regarding any financial charges, you agree not to cancel or reject any credit card or third-party payment processing charges until and unless you have made a reasonable attempt at resolving the matter directly with us.

4.2 Pricing and Availability

Prices do not include applicable taxes and other charges, unless we clearly state in writing that a price includes applicable taxes. All Products offered for sale are subject to availability and we reserve the right to impose quantity limits on any order, reject all or any part of an order and discontinue our Products without prior notice, even if you have already placed your order. Prices for Products are subject to change at any time, but changes will not affect any order for Products you have already placed. In the event that a Product you are interested in purchasing is not listed or is listed as "out of stock" on the Product’s information page, it is not currently available for ordering. Please check back at a later time as our Product inventory is subject to change.

4.3 Taxes

You are responsible for any sales, duty or other governmental taxes or fees due with respect to your purchase of Products. We will collect applicable sales tax if we determine that we have a duty to collect sales tax. We will present any taxes that we are required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.

4.4 Coupons, Discounts and Promotional Codes

All discounts, coupons and promo codes must be used at the time of purchase. Tipsy Elves reserves the right to deny all "price matching" or coupon and promo code refund requests submitted by customers after the time that purchase is completed. Discounts, coupons and promotional codes do not apply to shipping and/or taxes, if applicable. We reserve the right to exclude any and all products from promotional discounts, coupons and promotional codes.

4.5 Shipping; Risk of Loss

You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed unless explicitly stated as “guaranteed.” Unless we state otherwise, risk of loss or damage passes to you upon delivery of the Products to your specified delivery location.

4.6 Errors

We attempt to be as accurate as possible and to eliminate errors; however, we do not warrant that all product descriptions, photographs, pricing and other information are accurate, complete, reliable, current or error-free. In the event of an error, whether on the Services, in an order confirmation, in processing an order or delivering a product, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel the order and refund any amount charged.

4.7 Returns

Other than Halloween products*, Returns must be requested within thirty (30) days of receipt of the item. Returned items for a refund must be received at the warehouse the order originally shipped from within thirty (30) days of receipt of the item. Returns received after that thirty (30) day return period will not be accepted. To request a return, please contact us by emailing [email protected] or by calling 619-450-1281. Orders that are returned to the same warehouse the order originally shipped from and qualify for a refund will receive a product refund but not shipping refund. Customer pays for return shipping. Returns may not be done in person at the warehouse location. Returns for a refund require 3 days to process upon arrival at the warehouse before another 3-5 days for the funds to return to the account you used to pay for the item(s).

WE REQUIRE THAT ALL RETURNED ITEMS BE IN NEW, UNWORN CONDITION IN THE ORIGINAL PACKAGING WITH THE ORIGINAL TAGS STILL ATTACHED. We reserve the right to refuse the return of any items that have been worn, damaged, or had the tags removed. If an item we receive for return has been worn, or the tags removed, the item will be deemed unacceptable for return. All packaging for the returned item must be intact and not damaged in any way.

*Halloween products will be eligible for return within 14 days of purchase OR before October 31st of the year in which they are purchased, whichever comes first.*

4.8 Exchanges

Exchanges must be requested within thirty (30) days of receipt of the item. To request an exchange, please contact us by emailing [email protected] or by calling 619-450-1281. Customer pays for return shipping. Exchange requests may only be processed for an item of equal or lessor value. Exchange request received in which the requested item exceeds the value of the item exchanged will be refunded. Exchanges may not be done in person at the warehouse location and returned packages must be sent to the same warehouse location the order originally shipped from. Once delivered by the carrier, processing of the original item requires 3 business days to process.

WE REQUIRE THAT ALL EXCHANGED ITEMS BE IN NEW, UNWORN CONDITION IN THE ORIGINAL PACKAGING WITH THE ORIGINAL TAGS STILL ATTACHED. We reserve the right to refuse the exchange of any items that have been worn, damaged, or had the tags removed. If an item we receive for exchange has been worn, or the tags removed, the item will be deemed unacceptable for exchange. All packaging for the exchanged item must be intact and not damaged in any way.

5. User Content and Feedback

Our Services may allow you to create, post, store and share content, including messages, text, photos, videos and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Tipsy Elves.

You grant Tipsy Elves a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully- paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username and date of review) will be visible to the public. You may not to create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above.

Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Tipsy Elves or our Services (collectively, “Feedback”), is non-confidential and will become the sole property of Tipsy Elves. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

6. Social Media Posts

If you tag your social media post ("Post") with one of our promoted hashtags (e.g., #TipsyElves #TipsyTuesday), you agree to the following:

You consent and grant to Tipsy Elves the irrevocable, non-exclusive, transferable, sub-licensable, royalty free, worldwide right (but not the obligation), to (1) use, copy, perform, reproduce, edit, modify, display, broadcast, distribute, prepare derivative works of (or incorporate into other works), and otherwise exploit the Post (or any portion thereof) in any form, manner or media now or hereafter known including but not limited to posting or reposting the Post across Tipsy Elves digital properties (e.g., on Tipsy Elves branded websites and social media pages) and using the Post for commercial purposes including marketing, advertising, and publicity and (2) use your name, image, likeness, and username/ handle in connection with, or to reference the fact of, your Post to the extent you include such information in your Post. You understand and agree that you will not have any right to inspect or approve Tipsy Elves use of the Post, the Post will not be returned to you, and you will not be paid or otherwise compensated for Tipsy Elves use of your Post. Aside from the rights specifically granted herein, you retain ownership of all rights to your Post.

You represent and warrant that (1) your Post is your original creation for which you own and/or control all rights, (2) your Post does not violate any laws or infringe the intellectual property, privacy or publicity rights or any other legal or moral rights of any third party, (3) your Post will not contain obscene, indecent, or harassing material or feature nudity or drug/alcohol use, (4) you have obtained the express permission of each identifiable person appearing in your Post to be included and displayed in the Post as provided herein, and (5) you have the full power and authority to grant the rights contemplated herein.

You understand and acknowledge that your Post may be open to public commentary that is not under the Tipsy Elves direct control and does not necessarily reflect the views of Tipsy Elves. While Tipsy Elves may curate Posts, Tipsy Elves does not warrant their content or accuracy. You understand that you may be exposed to other Posts that you find offensive, indecent or otherwise objectionable. You understand and acknowledge that, pursuant to Section 230 of the federal Communications Decency Act, providers of interactive computer services shall not be treated as the publisher or speaker of any information provided by another information content provider. Posts may be removed by Tipsy Elves at any time and for any reason.

The rights to information posted on the website or Tipsy Elves’ social media pages (Tipsy Elves Pages) may be protected by patent, copyright, trademark, trade secrets or other proprietary rights owned by a third party other than Tipsy Elves. Additionally, certain content displayed and contained within Tipsy Elves Pages is the original authorship of Tipsy Elves and is owned exclusively by Tipsy Elves. By being a User of or Posting on any of Tipsy Elves Pages, you acknowledge that you may not modify, publish, transmit, display, copy, participate in the transfer or sale, create derivative works, or in any way exploit any of the content found, whether owned by Tipsy Elves or a third party, other than as provided herein.

You may request removal of any of your Post by sending a removal request email to [email protected]. Your email must include a link to the URL or complete description of the page or social media account on which your Post is posted. We reserve the right to deny any such requests.

7. Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while accessing or using our Services. You will not:

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
  • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
  • Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
  • Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
  • Bypass or ignore instructions contained in our robots.txt file, that controls automated access to portions of our Services; or
  • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

You may also only post or otherwise share User Content or Posts that are non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content or Post that:

  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • References or depicts Tipsy Elves or our Services but fails to disclose a material connection to us, if you have one (for example, if you are an Tipsy Elves employee);
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any private or personal information of a third party without such third party’s consent;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Tipsy Elves or others to any harm or liability of any type.

In addition, although we have no obligation to screen, edit or monitor User Content or Posts, we may delete or remove User Content or Posts at any time and for any reason.

8. Limited License; Copyright and Trademark Rights

Intellectual Property Rights

Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Tipsy Elves IP”) are owned by or licensed to Tipsy Elves and are protected under both United States and foreign laws including applicable copyrights and trademarks. Except as explicitly stated in these Terms, Tipsy Elves and our licensors reserve all rights in and to our Services and the Tipsy Elves IP. The posting of information or materials on the website or as part of the Services does not constitute a waiver of any rights as to such information and materials by Tipsy Elves.

Limited License to Use

You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Tipsy Elves IP for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Tipsy Elves IP; (b) copy, reproduce, distribute, publish, or publicly display Tipsy Elves IP, except as expressly permitted by us or our licensors; (c) modify the Tipsy Elves IP, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Tipsy Elves IP; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Tipsy Elves IP other than for their intended purposes. You do not acquire ownership rights to any Tipsy Elves IP or any content, document or other materials viewed through the Services. Any use of our Services or Tipsy Elves IP other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

Copyright Complaints

Tipsy Elves respects the intellectual property rights of others and expects Users to do the same. We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Tipsy Elves’ designated copyright agent by mail at Tipsy Elves, 1041 Market Street #306 San Diego, CA 92101 USA ATTN: INTELLECTUAL PROPERTY DEPARTMENT or at [email protected].

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may to liable to Tipsy Elves for certain costs and damages.

9. Privacy Policy and Transfer and Processing of Data

By accessing or using our Services, you consent to the collection and use of your information, including personally identifiable information, in accordance with our Privacy Policy. By accessing or using the Services, you consent to the processing and transfer of information relating to you, in and to the United States and other countries, which may have less adequate data protection laws than those found in your country of residency. For more information, please read our Privacy Policy, which is incorporated by reference into these Terms.

10. Sweater Donation Policy

We reserve the right, and you authorize us, to change our sweater donation policy (the "Donation Policy") at any time. You agree that any purchases made by you on the Site are not made in reliance on the Donation Policy.

11. Refer-a-Friend Program

As a Refer-a-Friend member (a “Referrer”), the following additional Terms & Conditions for Tipsy Elves’s Refer-a-Friend program:

Qualified Referral. A Qualified Referral is defined as a purchase of a Product using the Services by a person (a "Referred Customer") who arrives to our website by clicking your Refer-a-Friend program link. You are limited to one Qualified Referral for each Referred Customer; in other words, additional/repeat purchases made by a Referred Customer are not counted as additional Qualified Referrals.

Referred Customer. The Referred Customer and the Referrer cannot be the same person (for example, by using a different email address) or live within the same household.

Reward Payments. Rewards are payable in increments of $20. As a Referrer, you are responsible for any and all tax liability resulting from Referral Rewards.

Eligibility. Eligibility is limited to individuals only. Tipsy Elves’ Refer-a-Friend Program cannot be used by businesses for affiliate lead generation as determined in Tipsy Elves’s sole discretion. (Corporations are not people, my friend!)

No Spam. You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or "spam" under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from Tipsy Elves’ Refer-a-Friend program.

Right to Close Accounts. Tipsy Elves reserves the right to close the account(s) of any Referrer and/or Referred Customer and to request proper payment if the Referrer and/or Referred Customer attempts to use the Tipsy Elves Refer-a-Friend program in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation.

Right to Cancel Program or Change Terms. Tipsy Elves reserves the right to cancel the Refer-a-Friend Program or to change these Terms & Conditions at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.

12. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Tipsy Elves and its shareholders, officers, directors, agents, licensors, suppliers, service providers, affiliates employees, partners, and representatives (the “Tipsy Elves Parties”) from and against any and all claims, demands, causes of action, losses, expenses, costs, damages and/or liabilities, including reasonable attorney’s fees and court costs (“Claims”), incurred by the Tipsy Elves Parties in any way related to your (a) your use or misuse of our Services; (b) your User Content, Posts, or Feedback; (c) your violation of these Terms; (d) your violation of any rights of another; (e) your violation of any applicable law or regulation; and (f) your submission of inaccurate, untimely, incomplete or misleading User Content or Posts. You agree to promptly notify the Tipsy Elves Parties of any third party Claims and pay all fees, costs and expenses associated with defending such Claims (including but not limited to attorneys’ fees). You further agree to cooperate as requested by the Tipsy Elves Parties in the defense of such claims. You further agree that the Tipsy Elves Parties shall have control of the defense or settlement of any third party Claims. You agree that you shall not, in any event, settle any claim or matter on behalf of Tipsy Elves without the written consent of Tipsy Elves.

13. Disclaimer of Warranties

WE PROVIDE THE SERVICES ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THE TIPSY ELVES PARTIES DO NOT REPRESENT OR WARRANT OR ENDORSE, EXPRESSLY OR IMPLICITLY, THAT THE SERVICES: (I) ARE RELIABLE OR WILL BE UNINTERRUPTED, (II) WILL BE FREE OF DEFECTS OR ERRORS, (III) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE, (IV) WILL BE SECURE AND FREE FROM ANY HARMFUL COMPONENTS, SUCH AS VIRUSES OR OTHER MALWARE, OR (V) WILL CONTAIN MATERIALS THAT ARE ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY OR RELIABLE.

THE TIPSY ELVES PARTIES MAKES NO WARRANTIES OF ANY KIND OTHER THAN AS EXPRESSLY SET FORTH HEREIN AND YOUR USE AND ACCESS OF THE SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN RISK. THE TIPSY ELVES PARTIES EXPRESSLY DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES AND CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY PURPOSE, OR FITNESS FOR A PARTICULAR PURPOSE. IN STATES AND JURISDICTIONS IN WHICH THE EXCLUSION OF WARRANTY IS PROHIBITED, SUCH EXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED.

14. Limitation of Liability

To the fullest extent permitted by applicable law, the Tipsy Elves Parties will not be liable for any indirect, special, incidental or consequential damages of any kind arising out of or in any way related to the access to or use of the Services or the purchase of Products through the Services, including but not limited to any damages caused by or resulting from reliance on any information obtained from the Tipsy Elves Parties and from events beyond the Tipsy Elves Parties’ reasonable control, even if Tipsy Elves or the other Tipsy Elves Parties have been advised of the possibility of such damages.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply. To the fullest extent permitted by applicable law, the total liability of the Tipsy Elves Parties for any claim arising out of or relating to these Terms, our Services or Products purchased through the Services, regardless of the form of the action, is limited to the greater of (a) the purchase price of the Product(s) giving rise to the claim or (b) $100. The limitation of liability set out above does not apply to liability resulting from our fraud, gross negligence or willful misconduct.

If applicable, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

15. Dispute Resolution/Binding Arbitration/Class Action Waiver

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Tipsy Elves and limits the manner in which you can seek relief from us.

Except for any dispute arising out of or related to a violation of Section 7 or disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Tipsy Elves waive their rights to a jury trial and to have any dispute arising out of or related to these Terms, our Services or Products purchased through our Services resolved in court. Instead, all disputes arising out of or to these Terms, our Services or products or Services purchased through our Services will be resolved through confidential binding arbitration held in San Diego, California before and in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

You and Tipsy Elves agree that any dispute arising out of or related to these Terms, our Services or products or Services purchased through our Services is personal to you and Tipsy Elves and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative proceeding. You and Tipsy Elves further agree that any such disputes will also not be consolidated with any other proceedings that involve any claim or controversy of any other party.

You and Tipsy Elves agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Tipsy Elves agree that for any arbitration you initiate, you will pay the filing fee and Tipsy Elves will pay the remaining JAMS fees and costs. For any arbitration initiated by Tipsy Elves, Tipsy Elves will pay all JAMS fees and costs. You and Tipsy Elves agree that the state or federal courts of the State of California and the United States sitting in San Diego County have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim you may have arising out of or related to these Terms, our Services or products or services purchased through our Services must be filed within one year after such claim arose; otherwise, your claim is permanently barred, which means that you and Tipsy Elves will not have the right to assert the claim.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 15 by emailing us at [email protected] . In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17 of these Terms.

16. General Consent to Electronic Communications

You consent to receive communications from us whether required by law or otherwise, either by e-mail (if you have provided us with your e-mail address), or any other form of communication you have consented to in your Account settings, or by notice posted on www.om-heals.com as determined by us in our sole discretion. You agree that any requirement that a notice, disclosure, agreement, or other communication be sent to you by us in writing is satisfied by such electronic communication. We are not responsible for any automatic filtering you or your network provider may apply to communications we send to an e-mail address or other location that you provide to us.

Notwithstanding your indicated email marketing preferences, we may send you administrative emails regarding Tipsy Elves, including, for example, order confirmations or information about Services you have purchased as well as notices of updates to the Privacy Policy or these Terms if we choose to provide such notices to you in this manner. We may also contact you via e-mail to respond to a question, comment, or other communication that you may have initiated with us, including but not limited to questions related to the Privacy Policy or these Terms, any User Content you provide or in relation to customer service issue.

Tipsy Elves may seek your consent to contact you with certain non-emergency, automated, autodialed, prerecorded, or other telemarketing text messages. We may contact you using your phone or mobile number with an automatic telephone dialing system (ATDS). You may opt-out of these communications at any time, and consent to receive marketing text messages is not required to purchase any products or Services.

17. Miscellaneous

These Terms constitute the entire agreement between you and Tipsy Elves relating to your access to and use of our Services. The failure of Tipsy Elves to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. Our failure to act with respect to a breach of the Terms by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms is held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner and without affecting the remaining provisions hereof, which shall continue to be in full force and effect.

18. Governing Law and Jurisdiction

These Terms will be governed by and construed in accordance with the laws of the state of Delaware, without regard to its conflicts of laws principles and specifically will not be governed by the United Nations Convention on contracts for the international sale of goods or services. You agree that jurisdiction and venue in any legal proceeding directly or indirectly arising out of or relating to the Services, will be in San Diego County, California, and you hereby consent and submit to the exclusive personal jurisdiction and venue in San Diego County, California.

19. Termination

We reserve the right, subject to these Terms, to change, suspend, or discontinue any aspect of the Services, in our sole and absolute discretion and without notice or liability, including by adding or eliminating certain features, removing access to any Product or discontinuing any of our Products entirely. Any description of the features of Products or Services offered by Tipsy Elves shall not be considered to be a representation by Tipsy Elves that such features will always be included in such Products and Services.

We also reserve the right, subject to the Terms, to terminate or suspend your Account or restrict access to some or all of the Services or Products, for all users or only for you, without notice or liability. Accordingly, for any reason, and without notice, all or any part of the Services and Products may become unavailable to you at any time and for any period. In the event we terminate your Account, we may delete any or all of the information associated with your Account.

For the avoidance of doubt, we will not be liable if for any reason all or any part of the Services or Products are unavailable at any time or for any period.

20. Contact Us

If you have any questions about these Terms, contact us via email at [email protected].