ELOQUII Unlimited Terms of Service

Effective Date: 2/21/2020

IMPORTANT NOTICE: PLEASE NOTE THESE TERMS OF SERVICE CONTAINS AN ARBITRATION PROVISION IN SECTION 9 THAT GOVERN HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 9 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND ELOQUII WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. THIS MEANS THAT YOU WAIVE THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.

Welcome to ELOQUII Unlimited!

The following Terms of Service (“Terms”) between you and ELOQUII Design, Inc. (“we,” “our,” “us,” or “ELOQUII”) describes the terms and conditions on which you may access and use the ELOQUII Unlimited website available at www.eloquiiunlimited.com ( the “Site”), the ELOQUII Unlimited mobile app (the “App”) and related services (together with the Site, App and the ELOQUII Unlimited Content (as defined below) the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.

These Terms include the Sales and Rental Agreement found at Sale and Rental Agreement which govern the purchase or rental of any clothing or accessories (“Products”), and the Referral Policy found at Referral Policy, which govern our Referral Program. In the event of a conflict between these Terms on the one hand and either the Sale and Rental Agreement or the Referral Policy on the other hand, the terms and conditions that are more protective of ELOQUII shall control.

BY ACCESSING OUR SERVICES, YOU ARE ACCEPTING THESE TERMS. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF THE SERVICES FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO THESE TERMS WILL APPLY RETROACTIVELY.

1. GENERAL CONDITIONS

A. Eligibility

The Services may not be used by children under the age of 13, including by parents or legal guardians on their behalf. Children under 18 years of age but at least 13 years of age may use the Services under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase Products via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the rental or purchase of any Products, including all legal liability he or she may incur.

B. Modification of the Services or the Terms

We may revise and update these Terms from time to time, and will post the updated terms to our Site or App. We will indicate that changes to these Terms have been made by updating the date above. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THESE TERMS, ANY CHANGES TO THESE TERMS WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to these Terms will not apply retroactively to events that occurred prior to such changes. Your continued use of our Services will constitute your agreement to the modified Terms.

C. Privacy

To learn more about our privacy practices, please read our Privacy Policy, which is available at Referral Policy.

2. USE OF THE SERVICES

A. ELOQUII Unlimited Content

All content and information available through the Services, including but not limited to Product descriptions and specifications, Product photos, advice from stylists and photos and comments from other users (“ELOQUII Unlimited Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The ELOQUII Unlimited Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any ELOQUII Unlimited Content as a substitute for consultation with professional advisors. We may update the ELOQUII Unlimited Content as we deem appropriate and without notice to you. We cannot and do not assume any responsibility for your use or misuse of ELOQUII Unlimited Content or any other information transmitted, monitored, stored, or received while using the Services.

B. Third Party Content

The Service may contain links or references to third party websites, products, services or other materials or content (“Third Party Content”) not owned or controlled by ELOQUII. ELOQUII has no control over, does not endorse and assumes no responsibility for, any Third Party Content, including the accuracy, validity, timeliness, completeness, legality or practices in any Third Party Content. The availability of Third Party Content through the Services does not imply our endorsement of, or our affiliation with, any provider of such Third Party Content. You acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third Party Content available on or through our Services. Any such use of the Third Party Content is at your own risk and may subject you to additional or different terms and restrictions by the third party, and as such, we strongly encourage you to review any separate terms of use and privacy policies governing your use of these third party websites and Third Party Content.

C. Acceptable Use

No part of the Services, including the ELOQUII Unlimited Content, may be modified, reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that, you may view, copy, download, and print ELOQUII Unlimited Content (such as press releases and FAQs) solely for your personal, noncommercial, informational purposes and provided that, you do not remove any copyright, trademark, and other proprietary notices on the ELOQUII Unlimited Content.

D. Restrictions

You may not use the Services to: (i) transmit any content, information or other materials that are, or which ELOQUII considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, firearms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; (vii) impersonate any other person, including but not limited to, a ELOQUII representative; (viii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 13 years of age); (ix) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation, solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; (x) violate these Terms, or any applicable local, state, national or international laws or regulations; or (xi) use our Services or ELOQUII Unlimited Content to develop a competing service or product.

You also agree that you will not (and will not attempt to or permit any third party to): use any device, software, malicious code or destructive routine intended to damage or otherwise interfere with the proper functioning of our Site, App, servers, or networks connected to our Services or take any other action that interferes with any other person’s use of our Services. You will not attempt to reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.

E. Delays

There may be delays, omissions, or inaccuracies in the Services, including the ELOQUII Unlimited Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.

F. Own Risk

Any use of the Services is at your own risk and you must comply with all applicable laws, rules and regulations in doing so.

3. YOUR CONTENT

A. License to Your Content

If you post, upload, store, share or otherwise make available to or through ELOQUII as part of your use of the Services, including the Site or App, any information, data, documents, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to ELOQUII a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site and App, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content.

B. Obligations for Submitting Your Content

You represent and warrant that Your Content and your transmission thereof complies with these Terms, including Section 2(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize ELOQUII to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any of Your Content.

C. No Responsibility

By posting, uploading or otherwise providing Your Content to ELOQUII or the Services, you understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any of Your Content. You agree that we are not liable for any legal violation caused by your use or misuse of Your Content or other information transmitted, monitored, stored, or received while using the Services. We reserve the right to amend or delete any of Your Content (along with the right to terminate or restrict use of or access to the Services) that in our sole discretion violates any provision of these Terms.

4. YOUR ACCOUNT

A. Registration

To use the Services, you are required to sign up for an account with us (“Account”) and provide us with certain requested information (including personal information). When registering for an Account, you will be provided with an account and login information including a username and password to successfully complete the registration process. You are the only person authorized to access and use your Account. For more information about our collection of personal information in connection with Account registration on the Services, please review our Privacy Policy

B. Unauthorized Use and Information Changes

You must immediately notify us if you learn of or have reason to suspect any unauthorized use of your Account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities related to your Account. You promise to provide us with accurate, complete and up-to-date information during the registration process and to maintain and update such information. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.

C. Storing Credentials

The Services may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Services. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your Account. You are responsible for any damages to ELOQUII or the Services resulting from unauthorized access to the Services from your Account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.

5. INTELLECTUAL PROPERTY

A. Ownership of the Services

The Services, including the ELOQUII Unlimited Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of ELOQUII and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws in other jurisdictions. By way of example only, and not as a limitation, “ELOQUII Unlimited” and the ELOQUII Unlimited logo are registered trademarks of ELOQUII, under the applicable laws of the United States and/or other countries. Other ELOQUII product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of ELOQUII and/or its affiliates. All other product names appearing within the ELOQUII Unlimited Content are trademarks or registered trademarks of their respective owners. ELOQUII and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms. Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any ELOQUII Unlimited Content except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of ELOQUII or such third party that may own such ELOQUII Unlimited Content.

B. Services License

On the condition that you comply with all your obligations under these Terms, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely in connection with your personal, non-commercial purposes. We reserve all rights not otherwise expressly granted by these Terms. If you do not comply with these Terms, we reserve the right to revoke any license granted in these Terms and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in these Terms is strictly prohibited and constitutes a violation of these Terms, which may result in the termination of your right to access and use the Services.

C. Feedback

By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that ELOQUII may use your Feedback without restriction or obligation to you or any third party.

D. Notice of Copyright Infringement

If you are a copyright owner or an agent thereof and believe that any User Submission or other Content infringes upon your copyrights, you may notify us by providing the following information in writing:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed;
  • Identification of the location where the original or an authorized copy of the copyrighted work exists;
  • Identification of the User Submission or other Content that is claimed to be infringing and a description of the infringing activity and information reasonably sufficient to permit us to locate the same;
  • Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
  • 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 copyright right that is allegedly infringed.

Counter-Notice: If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Submission, you may send a written counter-notice containing the following information to the Copyright Agent:

  • Your physical or electronic signature;
  • Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content;
  • Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Columbus, Ohio and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Company will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

Repeat Infringer Policy: In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Sites and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Our agent for notice of claims of copyright infringement (“Copyright Agent”) can be reached as follows:

ELOQUII Design, Inc.
Two Miranova Place Suite 280
Columbus, OH 43215

You acknowledge that if you fail to comply with all of the requirements above, your notice may not be valid.

6. MOBILE TERMS

A. Mobile Charges

Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third-party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.

B. Additional Terms for Mobile Applications

When you access the Services through an App developed for Apple iOS or Android, Apple Inc. (“Apple”) and Google Inc. (“Google”), respectively, become third party beneficiaries to these Terms and, upon your acceptance of these Terms, will have the right to enforce these Terms against you as a third-party beneficiary thereof. Additionally, you acknowledge that neither Apple or Google are parties to this agreement and are not responsible for the provision or support of the Services in any manner. Any inquiries or complaints relating to the use of the App, including those related to any intellectual property rights, must be directed to ELOQUII. Your use of the App using is subject to the terms set forth in Apple’s or Google’s terms of services. Notwithstanding the foregoing, ELOQUII’s right to enter into, modify or terminate these Terms is not subject to the consent of any third party.

7. TERMINATION

A. Termination By You

You may stop using the Services at any time by deactivating your Account. In order to deactivate your Account, please contact us at support@eloquiiunlimited.com. You understand that Your Content may continue to exist and be used by ELOQUII on or through the Service or otherwise even after such deactivation and that you will not be entitled to any refund of any fees that you have paid prior to you deactivating your Account.

B. Termination By ELOQUII

ELOQUII may terminate your Account if you violate any of these Terms, if ELOQUII determines that your conduct poses a risk or liability to ELOQUII, or for any other reason as determined by ELOQUII in its sole discretion.

C. Effects of Termination

The provisions of these Terms that by their content are intended to survive the expiration or termination of these Terms, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of these Terms, will survive the expiration or termination of these Terms for their full statutory period.

8. DISCLAIMER OF WARRANTIES; INDEMNIFICATION; LIMITATION OF LIABILITY

A. Disclaimer of Warranties

EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 1(F) OF THE RENTAL AND SALE AGREEMENT , TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.

WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE SERVICES OR ANY CONTENT OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, VIRUS-FREEACCURATE OR RELIABLE, ALWAYS AVAILABLE OR THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED. ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

B. Indemnification

YOU AGREE TO DEFEND AND HOLD HARMLESS ELOQUII, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, VENDORS,MEMBERS,MANAGERS,EMPLOYEES,DIRECTORS,ANDAGENTSFROMANDAGAINSTANYANDALLCLAIMS,ACTIONS,SUITS, DEMANDS AND PROCEEDINGS AGAINST ELOQUII (“CLAIM”) ARISING OUT OF OR IN ANY WAY CONNECTEDWITH: (1) YOUR USE OF THE SERVICES, INCLUDING YOUR PURCHASE OF PRODUCTS OR SUBSCRIPTION TO AMEMBERSHIP AND YOUR NEGLIGENCE OR WILLFUL MISCONDUCT (“INDEMNIFIABLE CLAIMS”) AND SHALLINDEMNIFYELOQUIIFORALLDAMAGES,LOSSES,COSTSANDEXPENSES,INCLUDINGATTORNEYS’FEES,INCURREDBYELOQUIIINCONNECTIONWITHTHEINDEMNIFIABLECLAIMS.

C. Limitation of Liability

YOU EXPRESSLY AGREE TO WAIVE AND RELEASE AND HEREBY WAIVE AND RELEASE, ANY AND ALL CLAIMS AND LIABILITIES AGAINST ELOQUII THAT ARISE FROM YOUR USE OF THE SERVICES OR YOUR VIOLATION OF THIS THESE TERMS, THE RENTAL AND SALES AGREEMENT, THE REFERRAL POLICY, OR ANY FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS.

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE) SHALL ELOQUII, ITS OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, SERVICE INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL OR ACCURACY OF RESULTS OR (B) ANY AMOUNT IN EXCESS OF ONE HUNDRED DOLLARS ($100.00)

IF YOU ARE DISSATISFIED WITH THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND TERMINATE YOUR ACCOUNT.

IN THE EVENT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES CONTAINED IN THESE TERMS SHALL BE DETERMINED BY A COURT OR ARBITRATOR TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW.

IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST ELOQUII.

9. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOU RLEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. ELOQUII and you agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of the provisions in this Section 9.

For purposes of this Section 9, we will use the capitalized word “Dispute” to mean any dispute, claim or controversy arising out of or relating to these Terms (such as with respect to their validity or enforceability), the Site, the App your (or anybody else’s) access to and/or use of the Services.

In the event of a Dispute, ELOQUII or you must give the other notice of the Dispute. This notice must include a brief written statement that sets forth the name, address, and contact information of the party giving it, as well as the facts giving rise to the Dispute and the relief requested. You must send any such notice to ELOQUII by email to operations@eloquii.com AND by U.S. Mail to ELOQUII Design, Inc., 2 Miranova Place, Suite 280, Columbus, OH 43215. To the extent that ELOQUII has your contact information, it will send any such notice to you by U.S. Mail and your email address.

We will try to resolve any Dispute through informal negotiation within 30 days from the date that any notice of Dispute is sent by email and U.S. Mail. ELOQUII and you shall use reasonable, good faith efforts to settle any Dispute through consultation and good faith negotiations. After 30 days, ELOQUII or you may resort to the other alternatives described in this section.

Notwithstanding the foregoing, Disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Services shall not be subject to arbitration, and the notice and 30-day negotiation period required by this paragraph shall not apply to these types of Disputes.

Except as otherwise specifically set forth below, any Dispute of any kind, if unresolved through informal discussions within 30 days of the sending of the notice described above, shall be resolved by binding arbitration to be held in the U.S. state in which you reside. For residents outside the United States, arbitration shall be initiated in New York, New York, and ELOQUII and you agree to submit to the personal jurisdiction of any state or federal court in New York, New York to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

The arbitration shall be conducted by a single arbitrator, governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and administered by the AAA. The AAA Rules and fee information are available at www.adr.org or by calling the AAA at 1 (800) 778-7879.

ELOQUII shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be asserted or conducted for an improper purpose or frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney’s fees and expert witness costs unless ELOQUII is specifically required to pay such fees under applicable law. For claims that total more than $75,000, the AAA Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on ELOQUII and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. ELOQUII and you agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator must follow these Terms of Use and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. ELOQUII and you understand that, absent this mandatory arbitration provision, ELOQUII and you would have the right to sue in court and have a jury trial. ELOQUII and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.

If ELOQUII’s or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted, through a telephonic hearing, or by an in-person hearing under the AAA Rules, solely based on documents submitted to the arbitrator.

You or ELOQUII may choose to pursue a claim in small claims court where jurisdiction and venue over you and ELOQUII otherwise qualifies for such small claims court and where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to still provide ELOQUII 30-day advance notice by email to legal@jet.com and by U.S. Mail to ELOQUII.com, Inc., Legal Notice, to: 221 River Street, 8th Floor, Hoboken, NJ 07030.

You have the right to opt out and not be bound by the provisions requiring arbitration by sending written notice of your decision to opt out to ELOQUII by email to operations@eloquii.com AND by U.S. Mail to ELOQUII Design, Inc., 2 Miranova Place, Suite 280, Columbus, OH 43215. The notice must be sent within 30 days of your first use of any of the ELOQUII Sites. If you do not opt out via this method, you will be bound to arbitrate Disputes in accordance with the terms of these paragraphs. If you opt out of the provisions requiring arbitration, ELOQUII will not be bound by them either. If any clause within this Disputes/Arbitration section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect. In any event, if for any reason a Dispute between ELOQUII and you is before a court (e.g., if the arbitration provisions are found unenforceable or if pursuant to these Terms of Use the matter is not subject to arbitration), ELOQUII and you agree to waive, to the fullest extent allowed by law, any trial by jury.

This Disputes/Arbitration section will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of ELOQUII, or any employee, officer, director, or investor of ELOQUII, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Use (such as with respect to their validity or enforceability), the ELOQUII Sites, any person’s access to and/or use of the ELOQUII Sites, and/or the provision of content, products, services, and/or technology on or through the ELOQUII Sites.

10. CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.

For purposes of this section 16, we will also use the capitalized word “Dispute” to mean any dispute, claim, or controversy arising out of or relating to these Terms (such as with respect to their validity or enforceability), the ELOQUII Site, App, your (or anybody else’s) access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services. ELOQUII and you agree to resolve any Dispute will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. ELOQUII and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any Dispute with a third party.

If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in New York County, New York.

If any clause within this Class Action Waiver section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.

This Class Action Waiver section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of ELOQUII, or any employee, officer, director, or investor of ELOQUII, and to any claims asserted by any of them against you, to the extent that any such claims is a Dispute.

11. MISCELLANEOUS

A. Communications

You consent to receive communications from us, including email, text messages, calls, direct mail, and push notifications, including for the purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, and providing other information. We may contact you by telephone calls or text messages, including by an automatic telephone dialing system, at any of the telephone numbers provided by you. Standard message and data rates charged by your mobile carrier may apply to the text messages we send you.

You may opt out of receiving communications by emailing support@eloquiiunlimited.com or calling 1-888-270-0043. You acknowledge that opting out of receiving communications may impact your use of the Services.

B. Consent to Do Business Electronically

We use and rely upon electronic records and electronic signatures for the execution and delivery of these Terms and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with these Terms and in performing our obligations and exercising our rights under these Terms. Neither you nor ELOQUII will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.

C. Use of the Services outside of the United States

ELOQUII makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that ELOQUII intends to announce or make available such products or services to the general public, or in your country. Contact ELOQUII at support@eloquiiunlimited.com to determine which products and services may be available to you.

D. Export Laws

The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the ELOQUII Unlimited Content, or any part thereof, in any way, in violation of United States law.

E. Equitable Relief

You agree that breach of the provisions of these Terms would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of these Terms by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of these Terms.

F. Governing Law/Venue

These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in New York County, New York, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non convenience.

G. Entire Agreement

These Terms, including the Sales and Rental Agreement and Referral Policy incorporated herein, are the entire agreement between you and ELOQUII relating to the subject matter herein and shall not be modified except by ELOQUII in accordance with these Terms, or as otherwise agreed in writing by you and ELOQUII. No employee, agent or other representative of ELOQUII has any authority to bind ELOQUII with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.

H. Severability and Waiver

If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

I. Assignment

You may not assign or transfer these Terms or any of your rights or obligations under these Terms. ELOQUII may assign these Terms at any time without notice to you.

J. Force Majeure

ELOQUII will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond ELOQUII’s reasonable control.

K. Contact Us

Please send any questions or comments, or report violations of these Terms, to ELOQUII at support@eloquiiunlimited.com or LOQUII, 2 Miranova Place, Suite 280, Columbus, OH 43215