Website and App Terms of Use

L’Opetale Cosmetics

Effective as of July 18, 2024

U.S. VISITORS: THESE TERMS OF USE CONTAIN A CLASS ACTION WAIVER AS WELL AS AN ARBITRATION PROVISION, WHICH REQUIRES YOU TO ARBITRATE ANY DISPUTES OR CLAIMS (WITH CERTAIN EXCEPTIONS) YOU MAY HAVE ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND THAT YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR DISPUTES AND CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY IN ANY FORUM, AS DESCRIBED IN MORE DETAIL BELOW. YOU HAVE THE RIGHT TO OPT OUT OF ARBITRATION AND/OR THE CLASS ACTION WAIVER, AS EXPLAINED BELOW.

Thank you for accessing one of the L’Opetale Beauty brand’s websites (each, as applicable, a “Website” and collectively, the “Websites”) and/or one of the L’Opetale Beauty brand’s mobile applications (each, as applicable, a “Mobile App” and collectively, the “Mobile Apps”).

The Websites and the Mobile Apps are owned and operated by L’Opetale Cosmetics, Inc., a Delaware corporation, or one of its subsidiaries (collectively, “we” “us” or the “Company”). Our headquarters are located at 180 9th Street, Oakland, CA 85281 USA.

These Website and Mobile App Terms of Use (these “Terms of Use”) apply to and govern your use of any of the Websites and Mobile Apps as well as to any and all purchases of any product from us. These Terms of Use apply every time you access or use any Website or Mobile App, whether you access or use them as a guest or as a registered user. Use of any Website or Mobile App includes accessing, browsing, or registering to the applicable Website or the Mobile App. Please read these Terms of Use carefully before you start to use any Website or Mobile App.

By using any Website or Mobile App, you confirm that you accept these Terms of Use and that you agree to comply with them. If you do not agree to these Terms of Use, you must not use the Websites or the Mobile Apps. Please note that we update these Terms of Use from time to time, so remember to check back in before each use of any Website or Mobile App, as the latest Terms of Use will apply going forward and to any dispute or issue arising after the Terms of Use have been updated, to the extent permitted by applicable law.

Our Privacy Notice and any other policies, rules, or guidelines that may be applicable to a particular offer, product, or feature on any Website or Mobile App are also incorporated into these Terms of Use. You can find our Privacy Notice in the footer of each Website.

Certain provisions of the Terms of Use may be superseded by, or incorporated by reference into, additional legal notices, rules, or other terms applicable to certain other products, promotions, offers, or services we may offer, such as our loyalty program (“Additional Terms”). In order to participate in or use such other products, promotions, offers or services, you may be required to agree to such Additional Terms. Some products or services we offer may also be subject to additional requirements or restrictions imposed by us or participating third parties, such as the vendors or other merchants that issued, sponsored, or are associated with such product or service.

Please note that all orders and purchases made on the Websites or the Mobile Apps are also governed by the applicable Purchase and Sale Terms, which are incorporated by reference. You can find our Privacy Notice in the footer of each Website or before you check-out/finish your transaction.

Non-U.S. Visitors:

Please note that certain of the Websites and Mobile Apps do not provide products or other services to consumers outside of the United States and are not intended for non-U.S. visitors. Also please note that these Terms of Use do not apply to each of which has its own form of terms of use (which is accessible in the footer of the applicable website).

Certain features of the Websites or the Mobile Apps may not be available in the country in which you reside..

USE OF THE WEBSITES OR THE APPS

You must be 16 years of age or older to use the Websites or the Mobile Apps. Minors under the age of majority in their jurisdiction but that are at least 16 years of age are only permitted to use the Websites or the Mobile Apps if the minor’s parent or guardian accepts these Terms of Use on the minor’s behalf prior to use of the applicable Website or Mobile App. For clarity, children under the age of 13 are not permitted to use the Websites or the Mobile Apps. In addition, you may not use or access the Websites or the Mobile Apps if you are a Prohibited Person. A “Prohibited Person” is any person or entity that is (a) listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List; (b) located or organized in any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” (currently, the Crimea region of Ukraine, Cuba, Iran, North Korea, and Syria; such countries, “Prohibited Countries”); or (c) owned or controlled by such persons or entities listed in (a)-(b). By accessing or using any Website or Mobile App, you represent and warrant that you meet the foregoing requirements and will not be using the Website or the Mobile App for any illegal activity.

The Websites and the Mobile Apps are made available free of charge for your personal use subject to these Terms of Use. You may not use the content of the Websites or the Mobile Apps for any commercial purposes whatsoever.

You may use the Websites and the Mobile Apps only for lawful purposes and you may not use them in a way that infringes the rights of anyone else or that restricts or inhibits anyone else's enjoyment of the Websites or the Mobile Apps. You may not:

• download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Websites or the Mobile Apps, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms of Use;
• duplicate, decompile, reverse engineer, disassemble or decode the Website or the Mobile Apps (including any underlying idea or algorithm), or attempt to do any of the same;
• use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Websites or the Mobile Apps;
• access or use the Websites or the Mobile Apps in any manner that could disable, overburden, damage, disrupt or impair the Websites or the Mobile Apps or interfere with any other party’s access to or use of the Websites or the Mobile Apps or use any device, software or routine that causes the same;
• attempt to gain unauthorized access to, interfere with, damage or disrupt the Websites or the Mobile Apps, accounts registered to other users, or the computer systems or networks connected to the Websites or the Mobile Apps;
• circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Websites or the Mobile Apps;
• misuse or tamper with the Websites or the Mobile Apps (e.g., hack, introduce viruses, trojans, worms, logic bombs or other technologically harmful material or carry out denial of service attacks etc.);
• use the Websites or the Mobile Apps in any way that breaches any applicable local, national, or international law or regulation;
• use the Websites or the Mobile Apps in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
• use the Websites or the Mobile Apps for the purpose of harming or attempting to harm minors in any way;
• submit, transmit, display, perform, post or store any content that is inaccurate, unlawful, defamatory, obscene, lewd, lascivious, filthy, excessively violent, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, harmful, hateful, cruel or insensitive, deceptive, or otherwise objectionable, use the Websites or the Mobile Apps for illegal, harassing, bullying, unethical or disruptive purposes, or otherwise use the Websites or the Mobile Apps in a manner that is obscene, lewd, lascivious, filthy, excessively violent, harassing, harmful, hateful, cruel or insensitive, deceptive, threatening, abusive, inflammatory, pornographic, inciting, organizing, promoting or facilitating violence or criminal or harmful activities, defamatory, obscene or otherwise objectionable;
• use any robot, spider, crawlers, or other automatic device, process, software, or queries that intercepts, “mines,” scrapes, or otherwise accesses the Websites or the Mobile Apps to monitor, extract, copy, or collect information or data from or through the Websites or the Mobile Apps, or engage in any manual process to do the same; or
• exploit the Website or the Mobile Apps for any commercial purpose, including without limitation using the Websites or the Mobile Apps to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam).

We may end or restrict your use of the Websites or the Mobile Apps, without warning and without liability to you or any third party. You understand that we have the sole right to determine in our reasonable discretion whether you are engaging in any unauthorized activity and/or violating these Terms of Use.

AVAILABILITY OF THE WEBSITES AND THE APPS; ACCESSING THE WEBSITES AND THE APPS

You are responsible for making all arrangements necessary for you to have access to the Websites and the Mobile Apps. In order to fully access any Website or Mobile App, you will need a computer, tablet, mobile phone or other device that can connect to the Internet with the minimum system requirements to operate a web browser.

Although we aim to offer you the best service possible, the Websites, the Mobile Apps, or any content on them may not always be available or remain uninterrupted. Please note that we may suspend or withdraw or restrict the availability of all or any part of any Website or Mobile App for business and operational reasons without notice (e.g., for repairs, maintenance and/or updates). We will attempt to restore the service as soon as we reasonably can. Except where required by applicable law, we will not be liable to you if for any reason any Website or Mobile App is unavailable at any time or for any period.

We use reasonable efforts to ensure that the Websites and the Mobile Apps are free from viruses and other malicious or harmful content. However, we cannot guarantee that your use of the Websites and the Mobile Apps (including any content thereon) will not cause damage to your computer or other device. You should use your own virus protection software. Except where required by applicable law, we are not liable to any person for any loss or damage they suffer as a result of viruses or other malicious or harmful content that they access from or via the Websites and the Mobile Apps.

CREATING AND SAFEGUARDING YOUR ACCOUNT

To use certain parts of the Websites and the Mobile Apps, you may need to create an account (“Account”). You agree to provide us with accurate, complete, and updated information for your Account. You can access, edit, and update your Account by logging in at the applicable account login page. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us using the information in the “Contact Us” section if you know or have any reason to suspect that your Account or password have been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.

Please note that if you are given the option to remain logged into your Account and you select that option, you will remain logged into your Account for the particular browser for the applicable time period noted when you select that option unless you sign out of your Account or clear your browser cache/cookies.

USER GENERATED CONTENT

You agree that we may use your comments, reviews, feedback, suggestions, or questions, and any other submissions disclosed, submitted, or offered by you on or through the Websites or the Mobile Apps (collectively, “Submissions”) without compensation, acknowledgement, or payment to you, for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products and services and creating, modifying, or improving the Websites, Mobile Apps, or other products or services. When you make a Submission (other than your personal data which is subject to our Privacy Notice), you grant us a perpetual, worldwide, non-exclusive, royalty-free, transferrable license to use reproduce, distribute, prepare derivative works, and display the Submission in connection with our business, including in order to promote our websites or our business. You also grant us the right to sub-license your content to third parties on the same terms granted by you to us.

By posting or submitting Submissions through the Websites or the Mobile Apps, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power, and/or authority necessary to grant the rights granted herein for your Submissions. You agree that your Submissions will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described in the preceding paragraph.

Submissions should not include:

• abusive, offensive, or otherwise inappropriate language;
• profanity, blasphemy, spiteful, racist, sexually explicit, sexually gratuitous, or discriminatory comments or content that might be considered to be harassment, abuse, or threats against the personal safety or property of others;
• comments about other reviewers or bloggers;
• remarks that repeat criminal accusations, false, defamatory, or misleading statements;
• material which impersonates others or personal information about anyone, including yourself, such as phone numbers, postal addresses, or credit card numbers;
• spam or advertising; or
• HTML code, computer script, or website URLs.

We, in our absolute discretion, reserve the right to not publish any Submission or remove it, take any appropriate action if deemed necessary, or remove reviews which do not comply with the provisions above.

There is no compensation (monetary or otherwise) provided in exchange for your Submissions.

Please note that the views expressed in Submissions are the opinions of those users and do not represent our views, opinions, beliefs, or values or the views, opinions, beliefs, or values of any of our companies or affiliates.

VIRTUAL MAKEUP TRY-ON TOOL

Certain of our Websites or Mobile Apps provide a virtual makeup try-on tool (the “Virtual Makeup Try-On Tool”).

The Virtual Makeup Try-On Tool uses a photo or live camera feed to show a simulation of how a product may look on the user in the image. Except in the limited circumstance where you provide us with a photo in connection with your access and use of the NFTs provided by us as part of the Beauty Squad Loyalty Program (which is governed by the e.l.f. NFT Supplemental Terms), we do not collect, keep, or disclose the photo, image, and/or video feed, or any data associated with them in connection with the Virtual Makeup Try-On Tool. In addition, we do not collect, keep, or disclose any biometric information or biometric data in connection with the Virtual Makeup Try-On Tool.

By using the Virtual Makeup Try-On Tool and/or any other applications, programs, or technologies that use your camera and/or device, you consent to the use of your camera and/or device to permit the tool to take or use your image and overlay a portion or region of the face in the image with an image of the selected cosmetic product.

ELECTRONIC COMMUNICATIONS

By using the Websites or the Mobile Apps, you agree that we may send you operational messages. You consent to receiving operational electronic communications and notices from us. You agree that any notice, agreement, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

Any marketing messages we send to you will be sent in accordance with our Privacy Notice and, with respect to text messages (if available in your country in which you reside), the applicable terms and conditions for the text message program. You have the right to opt out of receiving marketing messages at any time. Please see our Privacy Notice (and, with respect to text messages, the applicable terms and conditions for the text message program) for more information regarding opting out of receiving marketing messages.

INTELLECTUAL PROPERTY RIGHTS

We are the owner or the licensee of all intellectual property rights in the Websites and the Mobile Apps, and in the material published on them (the “Material”). The Material is protected by copyright laws and treaties around the world. ALL RIGHTS RESERVED.

We do not grant any implied right to you or any other person and do not transfer or assign any ownership or intellectual property interest or title in or to the Websites or the Mobile Apps (including the Material) (or any part thereof) to you or anyone else. Accordingly, your unauthorized use of the Websites or the Mobile Apps (including any Material) may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes and may result in criminal or civil penalties.

You may not alter, delete, or conceal any copyright or other notices contained on the Websites, Mobile Apps, or any Materials, including notices on any audio/visual material you access, download, transmit, display, print, or reproduce from the Websites or the Mobile Apps.

You may not, nor will you allow any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, or circulate to any third party (including, without limitation, on or via a third-party website), or otherwise use, any Material without our express prior written consent.

All of our trademarks, service marks, and trade names used on the Websites or Mobile Apps (including all names, logos, and icons identifying the e.l.f. Beauty brands and their products and services) are proprietary trademarks of the Company or its affiliates in the U.S., Europe, and other countries. Except as otherwise permitted by these Terms of Use, they may not be used (including, without limitation, as domain names or account identifiers) without our prior express written permission. All other trademarks (including other product and company names) that appear on the Websites or Mobile App are the property of their respective owners, who may or may not be affiliated with or sponsor or endorse us (and who may or may not be endorsed by us).

DIGITAL MILLENNIUM COPYRIGHT ACT

We respect the intellectual property rights of others and require that the people who use the Websites, Mobile Apps, and our products do the same. We may terminate the privileges of users who are repeat infringers of intellectual property rights. If you are a copyright owner and believe that any content posted on the Websites or the Mobile Apps infringes upon your copyrights, please provide our designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the “DMCA”):

• a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• identification of the copyrighted work claimed to have been infringed;
• identification of the material that is claimed to be infringing and information reasonably sufficient to permit location of the material;
• information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
• a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our DMCA designated copyright agent for notice of claims of copyright infringement on the Websites or the Mobile Apps is our General Counsel, Scott K. Milsten, who can be reached as follows:

L’Opetale Cosmetics
140 9th Street
Oakland, CA 85281
Attn: Legal Department
E-mail: admin@lopetale.com

NO WARRANTY

The Websites, Mobile Apps, and Materials are provided for general information only. They are not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from taking, any action on the basis of the content on the Websites or the Mobile Apps.

Although we make reasonable efforts to update the information on the Websites and the Mobile Apps, we make no representations, warranties, or guarantees, whether express or implied, that the Websites, Mobile Apps, or Materials are accurate, complete, or up-to-date. Please note that while we have tried to accurately display the colors and other features of our products, the colors and other features you see will depend on your monitor/screen, and the actual colors and features may vary. Further, we try to keep the Websites and the Mobile Apps available, bug-free, and safe, but you use them at your own risk, and we do not guarantee that the Websites or the Mobile Apps will always be available, safe, secure, or error-free, or that the Websites or the Mobile Apps will always function without disruptions, delays, or imperfections.

Without limiting the foregoing, the Websites, Mobile Apps, and their content are provided “as is” and “as available” without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, accuracy, non-infringement, or warranties that may rise from course of dealing or course of performance or usage of trade.

Applicable law in some locations, such as the State of New Jersey, does not allow the waiver of implied warranties set forth above, so this provision may not apply to you.

No advice or information, whether oral or written, obtained from us or through the Websites or the Mobile Apps, will create any warranty or representation not expressly made herein. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: 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.

LIMITATION OF LIABILITY

To the extent not prohibited by law, you acknowledge and agree that in no event will the Company or its related companies (including any parents, subsidiaries, partners, licensors, joint ventures, distributors, administrators, third-party information providers, and any other persons or entities involved in the delivery of products, services, or information through the Websites or the Mobile Apps, predecessors, successors, or assigns), and each such company’s owners, directors, officers, employees, counsel, representatives, and agents, as well as each of their insurers, co-insurers, reinsurers, and insurance brokers, and any other persons or entities acting by, through, under, or in concert with any of them, whether in the past, present, or future (the “Company Parties”) be responsible or liable to you or any third party, under any theory of responsibility or liability, for any indirect, special, exemplary, incidental, consequential, or punitive damages (including, but not limited to, procurement of substitute goods or services; loss of data, use, or profits; business interruptions; or any other damages or losses), for any multiplier on or increase to damages, or for any costs or fees (including attorneys’ fees), whether under these terms or otherwise, arising in any way in connection with the Websites, the Mobile Apps, these Terms of Use, or any products procured through the Websites, Mobile Apps, or the Company, whether arising at law, in equity, or otherwise, and whether based in contract, strict liability, tort (including negligence or otherwise), common law, statute, equity, or otherwise, even if we have been advised of the possibility of such damage, or for any other claim, demand, or damages whatsoever, arising out of or related to your use or inability to use the Websites or the Mobile Apps. You specifically acknowledge that the Company Parties shall not be liable for defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you.

Without limitation of the foregoing, and to the extent not prohibited by law, the total liability of the Company Parties for any reason whatsoever arising out of or related to the use of, or inability to use the Websites or the Mobile Apps, these Terms of Use, or any products procured through the Websites, Mobile Apps, or the Company shall not exceed $100, or the amount you paid us, if any, for products purchased through the Websites or the Mobile Apps, whichever amount is greater. This liability, if any, shall be complete and exclusive. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

Applicable law in some locations, such as the State of New Jersey, does not allow the limitation of liability of certain damages set forth above, including the provisions of this section that limit or exclude special, exemplary, consequential, or punitive damages, or limit or exclude the use of any multiplier on or increase to damages, and limit the liability of any of the Company Parties, to the greater of either $100 or the amount paid by you for any products purchased through the Websites or the Mobile Apps. These limitations or exclusions may not apply to you. The provisions of this section do not apply to the extent, and only to the extent, not permitted by applicable law.

FORCE MAJEURE

IN NO EVENT SHALL THE COMPANY PARTIES BE DEEMED IN DEFAULT OR OTHERWISE LIABLE TO ANY MEMBER FOR ANY DELAY IN OR FAILURE TO PERFORM DUE TO CAUSES BEYOND THEIR CONTROL, INCLUDING, WITHOUT LIMITATION, ANY ACT OF GOD, ACT OF WAR, FIRE, EARTHQUAKE, BLIZZARD, FLOOD, DANGER TO PUBLIC HEALTH OR SAFETY, ACCIDENT, EXPLOSION, CASUALTY, STRIKE, LOCKOUT, LABOR CONTROVERSY, RIOT, CIVIL DISTURBANCE, ACT OF PUBLIC ENEMY, EMBARGO, WAR, LAW, ORDINANCE, REGULATION, LEGAL ORDER (UNLESS CAUSED BY THE COMPANY PARTIES’ DEFAULT THEREUNDER), FAILURE OR DELAY OF ANY TRANSPORTATION, POWER, OR COMMUNICATION SYSTEM, NATURAL DISASTER, TERRORISM, PANDEMIC OR EPIDEMIC, OR ANY ACT OR OMISSION OF A THIRD PARTY.

INDEMNITY

You agree to indemnify and hold the Company Parties from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by Company Parties arising from, in connection with, or relating to (a) your violation or breach of these Terms of Use; (b) your violation of any rights of any third party; and (c) your negligence or willful misconduct. You agree that the Company Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees and litigation expenses of the Company Parties in connection therewith. You will also indemnify and hold the Company Parties harmless from and against any claims brought by third parties arising out of your use of the information accessed through the Websites or the Mobile Apps.

ENFORCEMENT

You have no reasonable expectation of privacy while using the Websites or the Mobile Apps because we reserve the right to view, monitor, and/or record activity on the Websites or the Mobile Apps (in accordance with applicable law) and to comply with government or court appointed authorities when necessary. Actual or attempted unauthorized use of the Websites or the Mobile Apps may also result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. You shall therefore not, nor shall you permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by us for use of or with the Websites or the Mobile Apps. Moreover, you also acknowledge that any breach, threatened or actual, of these Terms of Use by you may cause irreparable injury to us and/or our licensors, such injury would not be quantifiable in monetary damages, and we and/or our licensors would not have an adequate remedy at law. You therefore agree that we and/or our licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of these Terms of Use. Accordingly, you hereby waive any requirement that we or our licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to us to enforce any provision of these Terms of Use.

LINKS TO OTHER WEBSITES; LINKS TO THE WEBSITES OR THE APPS

The Websites or the Mobile Apps may include links to third-party websites. These links are provided for your information only. We do not control and are not responsible for the content or privacy policies of any linked website, and the inclusion of any link on the Websites or the Mobile Apps does not imply our endorsement or approval of it. We are not responsible for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites.

You may link to the Websites or the Mobile Apps, as long as you do so in a way that is non-commercial, is fair and legal, and doesn’t damage or take advantage of our reputation. You may not link in a way that suggests any form of approval or endorsement by us where none exists. The Websites and the Mobile Apps may not be framed on any other website without our permission.

We reserve the right to withdraw linking permission without notice.

GOVERNING LAW

Non-U.S. Visitors

Except as set forth in the next paragraph, these Terms of Use and all disputes, actions, claims, or other controversies concerning or arising in any way out of your use (or lack of use) of, access (or lack of access) to, or a purchase from, the Websites or the Mobile Apps; the Virtual Makeup Try-On Tool; these Terms of Use or any Additional Terms; any product or service; any advertising or promotion of Company; or communication with the Company Parties (collectively, a “Dispute”), whether based in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis shall be governed by and construed in accordance with the laws of the country in which you reside. By using the Websites or the Mobile Apps or our product or services, you irrevocably agree that the country in which you reside shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms of Use or its subject matter or formation.

The Company contracts with US Direct E-Commerce Limited (trading as eShopWorld) to sell and deliver e.l.f. Cosmetics, e.l.f. SKIN, and Keys Soulcare products purchased on the Websites or the Mobile Apps to consumers in certain countries/regions outside of the United States. If your order for those brands is shipping to one countries/regions where our international shipping is supported by eShopWorld, the contract for the purchase, sale and delivery of our products will be between you and eShopWorld, and subject to the eShopWorld Terms and Conditions (located here).

U.S. Visitors

These Terms of Use have been made in and will be construed and enforced solely in accordance with the laws of the state of California; provided, however, that the arbitration provisions herein shall be governed by the Federal Arbitration Act and the American Arbitration Association (“AAA”) Consumer Arbitration Rules (the “AAA Rules”), as described more fully below. You and the Company also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to these Terms of Use and is hereby disclaimed. A printed version of these Terms of Use and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent as other documents and records originally generated and maintained in printed form. Please contact the Company if you wish to receive a printed copy of these Terms of Use.

BINDING ARBITRATION AGREEMENT; CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

Scope of the Arbitration Agreement. Mindful of the high cost of legal disputes, not only in dollars but in time and energy, both you and we agree that any and all disputes, actions, claims, or other controversies concerning or arising in any way out of your use (or lack of use) of, access (or lack of access) to, or a purchase from, the Websites or the Mobile Apps; the Virtual Makeup Try-On Tool; these Terms of Use or any Additional Terms; any product or service; and any advertising, promotion, of or other communications with a Company Party (collectively, a “Dispute”), whether based in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis, shall be resolved exclusively through final and binding individual arbitration. “Dispute” will be given the broadest possible meaning allowable under law.

This agreement to arbitrate covers and includes threshold questions of arbitrability. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any and all Disputes arising out of or relating to the formation, existence, scope, validity, interpretation, applicability, or enforceability of this agreement to arbitrate, or any part of it, or of these Terms of Use, including, but not limited to, any claim that all or any part of this agreement to arbitrate or the Terms of Use is void or voidable. If any party disagrees about whether the foregoing provision (or any portion of this agreement to arbitrate, including without limitation the provisions relating to arbitration) can be enforced or whether it applies to the Dispute, the parties agree that the arbitrator will decide that Dispute. Notwithstanding the foregoing, however, the parties agree that any issue concerning the validity of the class action waiver below must be decided by a court, and an arbitrator does not have authority to consider the validity of the class action waiver. Both you and we understand and agree that we are waiving our right to sue or go to court to assert or defend our rights, except as set forth below.

Exceptions. Notwithstanding the remainder of this binding Arbitration Agreement, you and we agree that the following types of Disputes will be resolved in court, unless both you and we agree to submit the Dispute to arbitration pursuant to this binding Arbitration Agreement:

1. Disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual Dispute and not as a class, representative, or consolidated action or proceeding;
2. Disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or
3. Intellectual property Disputes.

For the avoidance of doubt, the waiver of the right to bring claims in or otherwise participate in a class, representative, or consolidated action or proceeding set forth in the class action waiver provision below does not prevent you from seeking public injunctive relief in an individual capacity to the extent otherwise permitted by law.

You and we also agree that for Disputes where both injunctive relief (including public injunctive relief) and non-injunctive relief are sought, you and we will first submit the Dispute for non-injunctive relief to arbitration pursuant to this Binding Arbitration Agreement; Class Action Waiver section. The arbitrator will not be permitted to grant injunctive relief (unless the parties mutually agree otherwise). Once the arbitration of the Dispute or claim for non-injunctive relief has concluded, you and/or we may seek the injunctive relief (including the public injunctive relief) in court to the extent permitted by law.

Any litigation in court of the foregoing types of Disputes (except for small claims court actions) may be commenced only in a federal or state court located within San Francisco, California, and you and we each consent to the jurisdiction of those courts for such purposes. Regardless of whether the foregoing types of Disputes in this Exceptions provision are resolved by a court or pursuant to arbitration, you and we agree that the Dispute is subject to the class action waiver provision set forth below.

Informal Dispute Resolution. Either party asserting a Dispute shall first try in good faith to resolve it by providing written notice as specified below to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Both you and we agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.

How Arbitration Works. Either party may initiate arbitration of a Dispute, which will be settled by final and binding arbitration, using the English language, administered by AAA under the AAA Rules then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms of Use). Because your contract with us, these Terms of Use, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Unless you and we agree otherwise, including to conduct the arbitration by telephone or videoconference, any arbitration hearing shall take place in San Francisco, California, unless the arbitrator determines that a different location would better serve the convenience of the parties. If you live outside the United States, any arbitration will take place in San Francisco, California. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the AAA Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, we will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below). Each party is responsible for his, her, their or its own attorneys’ fees and expenses, and we will not pay your attorneys’ fees or expenses except to the extent ordered to do so by the arbitrator. If you prevail in arbitration, however, you will be entitled to an award of reasonable attorneys’ fees and expenses to the extent allowed for under applicable law and ordered by the arbitrator. In the event the arbitrator determines the claim you asserted in the arbitration to be frivolous according to Federal Rule of Civil Procedure 11, or brought for an improper purpose, you agree to reimburse us for all fees associated with the arbitration paid by us that you otherwise would have been obligated to pay under the AAA Rules. In determining whether an action is frivolous, the arbitrator may consider whether hawse have offered you a full refund of the sum you paid for items you purchased from us or has otherwise offered full relief to you in relation to your individual claim. If the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, we will reimburse any filing fees that you paid and were not otherwise reimbursed. Judgment on the arbitration award may be entered in any court that has jurisdiction. Except as stated below under “Batch Arbitration”, any arbitration under these Terms of Use will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms of Use, you and we are each waiving the right to trial by jury or to participate in a class action or class arbitration.

Batch Arbitration. Notwithstanding any provision to the contrary in the foregoing or in the applicable AAA Rules then in effect, and to the maximum extent permitted by applicable law, you and we agree that, in the event there are 25 or more individual arbitration demands filed within a 90-day period relating to the same or similar facts and asserting the same or similar claims for relief, brought by claimants represented by the same counsel or counsel coordinating with one another, the following rules shall apply:

• AAA shall administer the arbitration demands in batches of 25 demands per batch (or as close as possible to 25, where there are fewer than 25 demands to fill a batch).
• For each such batch, AAA shall appoint a single arbitrator and resolve the batch as a single consolidated arbitration, with one set of filing, administrative, and arbitrator fees due per batch (with the same fee schedule being applied to the entire batch as would ordinarily apply to a single arbitration).
• Batches may be arbitrated concurrently. Arbitration awards in one batch shall have no precedential effect on subsequently administered batches.
• You and we shall cooperate with one another and with AAA to implement this batch arbitration process in good faith, in the interests of minimizing the costs of arbitration.

Any challenge by a party to the applicability, validity, or enforceability of this batch arbitration provision shall be decided only by a court of competent jurisdiction and not by an arbitrator. In the event that this batch arbitration provision is found to be invalid or unenforceable, or in the event that the AAA declines to implement this batch arbitration provision for any reason, the entire Arbitration Agreement shall be of no force and effect when there are 25 or more individual arbitration demands filed within a 90-day period relating to the same or similar facts and asserting the same or similar claims for relief, brought by claimants represented by the same counsel or counsel coordinating with one another. The class action waiver, however, will still apply to the extent permitted by law.

WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND THE COMPANY EACH AGREE THAT ANY PROCEEDING TO RESOLVE ANY DISPUTE WILL BE BROUGHT AND CONDUCTED ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). YOU AND THE COMPANY AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. YOU AND THE COMPANY EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. IF THE DISPUTE IS SUBJECT TO ARBITRATION, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. FURTHER, YOU AND THE COMPANY AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. FOR THE AVOIDANCE OF DOUBT, HOWEVER, YOU CAN SEEK PUBLIC INJUNCTIVE RELIEF TO THE EXTENT AUTHORIZED BY LAW AND CONSISTENT WITH THE EXCEPTIONS CLAUSE ABOVE.

IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.

Right to Opt-Out of Arbitration. You have the right to opt-out and not be bound by the arbitration provisions and/or the class action waiver set forth in these Terms of Use by sending written notice of your decision to opt-out to:

L’Opetale
Attn: Legal Department
570 10th Street
Oakland, CA 94607

The notice must be sent to the Company within 30 days of your agreeing to these Terms of Use. Your written notification must include your name and address, as well as a clear statement that you do not wish to resolve Disputes with the Company through arbitration and/or that you do not agree to the class action waiver. If you do not opt out, you shall be bound to arbitrate Disputes on an individual basis in accordance with the provisions of this Section XVI. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If you opt-out of these arbitration provisions and/or class action waiver, the Company also will not be bound by them.

Governing Law and Other Terms. This binding Arbitration Agreement and class action waiver are governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act and other applicable federal law. To the extent state law applies to any aspect of this binding Arbitration Agreement and class action waiver, or to any Disputes that are covered by this binding Arbitration Agreement and/or class action waiver, the law of the state of California will apply. We will provide notice of any material changes to this binding Arbitration Agreement and/or class action waiver (which may be satisfied by updating these Terms of Use, unless not otherwise permitted by law), in which case you will have the right to opt out of the arbitration provisions and/or class action waiver within 30 days after such change, consistent with the terms above. Except as set forth above regarding the class action waiver provision, if any portion of these arbitration provisions is deemed invalid or unenforceable, it will not invalidate the remaining portions of these arbitration provisions. Only the arbitrator is authorized to make determinations as to the scope, validity, or enforceability of this binding Arbitration Agreement, including whether any Dispute falls within its scope, as set forth above. However, the parties agree that any issue concerning the validity of the class action waiver above must be decided by a court, as set forth above, and an arbitrator does not have authority to consider the validity of the waiver.

MISCELLANEOUS

We produce cosmetic and skin care products, tools, and related accessories. The Websites and Apps are mainly intended for the online sale of our products.

You agree that you will not export or re-export, directly or indirectly, the Websites, Mobile Apps, and/or other content, tools, features, functionality, information, or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the foregoing may not be exported or re-exported to any Prohibited Person or Prohibited Country. You are responsible for and hereby agree to comply at your sole expense with all applicable export laws and regulations.

If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Websites or the Mobile Apps, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content, and materials provided to you, in each case for the sole purpose of enabling you to use the Websites and the Mobile Apps, as permitted by these Terms of Use and any Additional Terms.

These Terms of Use do not affect your statutory rights or your legal rights, if any, as a consumer.

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

If any provision of these Terms of Use is held to be invalid or unenforceable, that provision shall be construed consistent with applicable law, and the remaining provisions shall be enforced. In the event any provision of these Terms of Use is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, you agree that unless it materially affects the entire intent and purpose of these Terms of Use, the invalidity, voidness, or unenforceability shall affect neither the validity of these Terms of Use nor the remaining provisions herein (except as set forth above with respect to the class action waiver), and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.

Headings are for reference purposes only and in no way define, limit, construe or describe the scope of such section.

Our failure to enforce any provision of these Terms of Use shall not constitute a waiver of that or any other provision.

We may assign these Terms of Use in whole or in part. Moreover, we may delegate our rights and responsibilities or use contractors or agents to fulfill its obligations under these Terms of Use.

These Terms of Use represent the entire agreement between you and us in connection with your use of the Websites or the Mobile Apps, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and the Company with respect to the Websites and the Mobile Apps.

Any rights not expressly granted herein are reserved by the Company. Please note that the Company reserves the right to change these Terms of Use and by which the Websites and the Mobile Apps are extended to you by providing you in writing or electronically a copy of such revised terms (or notice thereof).

We may revise these Terms of Use at any time by updating this page. By using the Websites or the Mobile Apps, you agree to be bound by any such changes. Every time you wish to use any Website or Mobile App, please check these Terms of Use to ensure you understand the terms that apply at that time. We may update and change the Websites or the Mobile Apps from time to time to reflect changes to our products, our customer’s needs, and our business priorities.