THE MASKSHEETS REFERRAL PROGRAM
TERMS & CONDITIONS
The Masksheets Referral Program Terms & Conditions
(this “Agreement”) supersedes and replaces in its entirety any and all prior
agreements (written or verbal) or understandings between you, the enrolling referrer
(hereinafter referred to as “Masksheets,” “you,” or “your”), and TSF NY INC and
its parent, subsidiary and affiliate entities (hereinafter referred to
collectively as “Masksheets,” “Brand,” “Company,” “we,” “us,” or “our”) and
sets forth the Terms and Conditions of the current Masksheets Referral Program
and defines the relationship between you and Masksheets, including, without
limitation www.masksheets.com
(the “Site”), where we make available our products for purchase (the
“Products”). By agreeing to be a Masksheets Affiliate, you agree to be bound by
the terms and conditions of this Agreement and all other terms incorporated
herein by reference.
We reserve the right, at our sole discretion, to change
or modify any or all portions of this Agreement at any time without advance
notice. You may read a current, effective copy of this Agreement at any time by
selecting the “Terms of Use” link listed under the Masksheets Affiliate tab on
the Site. You should periodically visit the Site to review the current Terms of
Use, so you are aware of any revision of this Agreement to which you are bound.
1) Eligibility:
a. You represent and warrant that you are at least 18
years of age. If you are under age 18, you may not, under any circumstances or
for any reason, participate in the Masksheets Referral Program. We may, in our
sole discretion, deny any person’s or entity’s participation in the Masksheets Referral
Program and change our eligibility criteria at any time without any prior
notice to you.
b. You are solely responsible for ensuring that your
participation in the Masksheets Referral Program complies with all laws, rules
and regulations applicable to you as well as the terms of this Agreement and
the “Terms of Use” which you can find on the Site.
c. We continually test new features, functionalities,
services, user interfaces and Products that we are considering incorporating
into or providing through our Site. We reserve the right to include or exclude
you from these tests without any notice to you.
d. Due to tax regulation, we only accept affiliates who live in the United States.
2) Registration:
a. You may register for participation in the Masksheets Referral
Program on the Site (the “Registration”). You must provide accurate and
complete information requested for the Registration.
b. Any omissions from the requested Registration
information or any incomplete information thereof may be a cause to reject your
request to become a Masksheets.
c. Registration alone does not guarantee participation in
the Masksheets Referral Program nor receipt of any Product(s) or merchandise or
any commission from Masksheets.
3) Independent Contractor:
You understand and agree that, as a Masksheets Affiliate,
you are solely an independent contractor of Masksheets, and you are not an
employee, agent, partner, legal representative, joint-venturer or franchisee of
Masksheets. You also understand that you are not, and will not be treated as,
an employee of Masksheets for any purpose whatsoever, including but not limited
to, federal or state tax purposes, unemployment benefits or worker’s
compensation or similar insurance. You expressly and unconditionally understand
and agree that Masksheets is not responsible for your withholding or any other
kind or form of taxes (local, provincial, state, federal or otherwise), and
shall not withhold or deduct any taxes from any compensation or commission you
may receive from Masksheets, unless such withholding becomes required by an
applicable law, rule or regulation. We will issue you a 1099 form if your
aggregate commission for the taxable year requires us to do so under all
applicable tax codes, rules and regulations, and you agree to provide us with a
completed W-9 form upon request.
4) Commissions:
a. No Guarantee of Income. You fully understand and agree
that your participation in the Masksheets Referral Program does not guarantee
at any time that you will make any amount of income or commissions or be
profitable in your efforts as a Masksheets Affiliate, and Masksheets has never
made any representations to the contrary. You fully understand and agree that
you shall not represent to others, either directly or indirectly, that a Masksheets
Affiliate is guaranteed an income or will derive profits from his/her efforts
hereunder. You fully understand and specifically acknowledge and agree that
your income hereunder, if any, is dependent solely and exclusively on your
Attributed Sale (as hereinafter defined) of Masksheets Products to the
end-user/customer, as further described below.
b. Commission Based on Attributable Sale. Masksheets utilizes
an Attributed Commission structure. Attributable Commissions are earned as
follows: (i) a Masksheets Product is purchased by an end user customer only via
the Site, and (ii) such purchase is directly attributable to the Masksheets
Affiliate’s link or code (an “Attributable Sale”). In the event of any such
Attributable Sale, the Masksheets Affiliate is eligible to earn a percentage of
the net sales order as calculated by Masksheets (hereinafter referred to as an
“Attributable Commission and communicated at the time of onboarding. If the Masksheets’s
code is used alone without the associated Masksheets link, Masksheets is not
able to guarantee the Attributable Commission. If there is an unexplainable
uptick in the use of a Masksheets Affiliate's code or link, subject to Masksheets’s
approval, Masksheets will pay the Masksheets Affiliate the maximum Attributable
Commission earned in the past thirty (30) days. Attributable Commissions will be paid to Masksheets Affiliate on a 30-day
payment cycle once the aggregate commission from the Attributable Sale reaches
$50 for the applicable payment cycle (hereinafter referred to as a “Commission
Payout”). When a Product is returned to Masksheets for a refund, is repurchased
by Masksheets, or a chargeback or void occurs, the Attributable Commission
earned as a result of the corresponding sale will be deducted from the
subsequent Commission Payout.
5) General Conduct:
a. As a participant in the Masksheets Referral Program,
you will conspicuously identify yourself as an independent contractor in all
advertising, telephone directory listing, promotional material, social media
postings, and other forums in which you promote Masksheets’s Products or
services, the Masksheets business and/or the Brand. You understand that you are
responsible for the content of all material that you produce, including the
Photos and Videos (as hereinafter defined) and any music contained therein, and
all of your postings on any social media site, as well as all posting on any
media, platform, site or medium that you participate in, own, operate or control.
b. You hereby agree and acknowledge that you shall
diligently and in good faith safeguard and promote the good reputation of: (i) Masksheets,
its equity-holders, directors, officers, agents, advisors, attorneys, and
employees, and (ii) Masksheets, Masksheets Products, retailers and the Brand.
You shall not engage in any conduct that may damage, derogate or lessen in any
way the goodwill, reputation, brand, management personnel or business or
Products of Masksheets.
c. You also expressly and unconditionally agree to avoid
all deceptive, misleading, unethical, discriminatory, harassing, obscene,
illegal, immoral, criminal, and negative conduct or practices, and to exhibit
high moral character and integrity in your personal and professional conduct at
all times. You understand and acknowledge that any breach of the foregoing as
determined in Masksheets’s sole discretion may result in your termination as a Masksheets
Affiliate at any time. While you and Masksheets both understand it is
impossible to specify all misconduct, you expressly and unconditionally
acknowledge and agree that the following list of conduct and standards
specifically apply to and govern your activities:
●
You will at all times keep strictly confidential any Masksheets information
shared with you that is or likely would be deemed to be confidential or
proprietary, and upon the termination of the Masksheets Affiliate Referral
Program or your termination as a Masksheets Affiliate will return or
permanently destroy such information immediately.
●
You expressly and unconditionally represent, warrant, and agree that you shall
offer the Products only through the Site and under the Masksheets Affiliate Referral
Program and shall not, directly or indirectly, offer Masksheets Products for
sale or fulfill sales/orders of such Products through any other website or
other electronic site, platform service, or otherwise without the prior written
consent of Masksheets, which can be granted solely through execution by Masksheets
or a separate and distinct agreement.
●
YOU SHALL NOT MAKE ANY REPRESENTATIONS, STATEMENTS, WARRANTIES OR CLAIMS OF ANY
NATURE WHATSOEVER, AT ANY TIME, IN ANY FORM OF COMMUNICATION, RELATING TO MASKSHEETS,
ITS PRODUCTS OR BRAND, OR THE INCOME THAT MAY BE DERIVED FROM YOUR POSITION AS
A MASKSHEETS AFFILIATE, SAVE AND EXCEPT FOR THE FOLLOWING:
1. THE EXPRESS REPRESENTATIONS AND CLAIMS PUBLISHED BY MASKSHEETS
ON ITS COMPANY AND/OR BRAND WEBSITE; OR 2. THE EXPRESS REPRESENTATIONS AND
CLAIMS PUBLISHED BY MASKSHEETS ON THE PRODUCT PACKAGING.
6) User Content:
a. With respect to Photos and Videos, Submissions (as
hereinafter defined), and any content or other materials you provide to Masksheets
(collectively, the “User Content”), you hereby represent and warrant that you
own all right, title and interest in and to such User Content (or have a right
to use such User Content), including, without limitation, all copyrights and
rights of publicity contained therein, and that all User Content provided by
you is accurate, complete, up-to-date, and in compliance with all applicable
laws, rules and regulations. You shall not (and shall not permit any third
party to) take any action or upload, post, or otherwise distribute any User
Content that infringes any patent, trademark, trade secret, copyright, right of
publicity or other right of any other person or entity or violates any law or contractual
duty. You shall not (and shall not permit any third party to) take any action
or upload, post, or otherwise distribute any User Content that you know, or has
a reason to know, is infringing, false, misleading, untruthful, inaccurate,
unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another's privacy, tortious, obscene, vulgar,
pornographic, offensive, profane, contains or depicts nudity, contains or
depicts sexual activity, or is otherwise inappropriate as determined by us in
our sole discretion.
b. Masksheets may pull content from Masksheets Affiliate who
share photos and videos (and any music contained in such videos) on any social
media platform using our brand hashtags, including, without limitation, #masksheets,
#masksheets4me, #masksheetscom, #masksheets_com and #masksheetsaffiliate
(collectively, the “Masksheets Hashtags”), or tagging the @masksheets_com
account in a social media caption or social media post (collectively, “Photos
and Videos”). You acknowledge and agree that the Photos and Videos may be used
in Masksheets’s or Masksheets’s retail partners’ retail stores and locations
and emails and on the Site, and you hereby grant us a worldwide, perpetual,
unlimited and royalty-free permission to use and authorize others to use your name
or social media handle in association with the Photos and Videos for
identification, publicity related to the Masksheets Referral Program and
similar promotional purposes, including after your termination as a Masksheets
Affiliate or the termination of the Masksheets Referral Program. You represent
and warrant that the posting and use of your Photos and Videos, including to
the extent such Photos and Videos include your name, username, likeness, voice,
or photograph, does not violate, misappropriate or infringe on the rights of
any third party, including, without limitation, privacy rights, publicity
rights, copyrights, trademarks, contract rights or any other intellectual
property or proprietary rights.
c. By submitting any User Content you hereby grant and
will grant Masksheets and its affiliated companies, successors and assigns a
nonexclusive, worldwide, royalty free, fully paid up, transferable,
sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish,
create derivative works from, copy, display, upload, publicly perform,
distribute, store, modify and otherwise use your User Content and any name,
username, likeness, voice or photograph provided in connection with your User
Content, without compensation to you, in connection with the operation of the
Site or the promotion, advertising or marketing of the Product, Masksheets or
the Brand, in any form, medium or technology now known or later developed, and
including after your termination as a Masksheets Affiliate or the termination
of the Masksheets Affiliate Referral Program. For clarity, the foregoing
license does not affect your other ownership or license rights in your User
Content, including the right to grant additional licenses to your User Content,
unless otherwise agreed in writing. You represent and warrant that you have all
rights to grant such licenses to Masksheets without infringement or violation
of any third party rights, including without limitation, any privacy rights,
publicity rights, copyrights, trademarks, contract rights or any other
intellectual property or proprietary rights.
d. You acknowledge and agree that any questions,
comments, suggestions, ideas, feedback or other information that you provide to
Masksheets (collectively, “Submissions”) are non-confidential, and Masksheets will
be entitled to the unrestricted use and dissemination of these Submissions for
any purpose, commercial or otherwise, without your acknowledgment, agreement or
compensation. You acknowledge and agree that Masksheets may preserve User
Content and may also disclose User Content if required to do so by law or in
the good faith belief that such preservation or disclosure is reasonably
necessary to: (i) comply with legal process, applicable laws or government
requests; (ii) enforce this Agreement; (iii) respond to claims that any User
Content, Photos and Videos or Submissions violates the rights of third parties;
or (iv) protect the rights, property, or personal safety of Masksheets, our
users and the public.
7) Use of Personal Information & Commercial
Electronic Messages:
You hereby knowingly, expressly, and unconditionally
authorize Masksheets to collect and use your personal information in accordance
with the Masksheets Privacy Policy specified in the Site. You also hereby
knowingly, expressly, and unconditionally consent to Masksheets sending you
commercial electronic messages, including but not limited to SMS. You
understand and acknowledge that you can revoke your authorization and/or
consent at any time by emailing contact@masksheets.com. You
hereby knowingly, expressly and unconditionally understand and accept the fact
that Masksheets requires access to some of your personal information, and the
ability to send commercial electronic messages to support your activities as a Masksheets
Affiliate. You also hereby knowingly, expressly and unconditionally understand
and acknowledge that, if you wish to continue as a Masksheets Affiliate, and if
you revoke authorization to collect and use personal information or withdraw
your consent to and for Masksheets to send commercial electronic messages, you
may not be able to perform as a Masksheets Affiliate.
8) Confidential Information:
“Confidential Information” means all confidential or
proprietary information, documents, and materials of Masksheets, whether printed
or in machine-readable form or otherwise, and whether disclosed, either
directly or indirectly, in writing, orally or by inspection of tangible and
intangible objects, including, but not limited to, products, future product
ideas, product development, marketing and branding plans or practices,
advertising, trade secrets, know-how, formulas, processes, prototypes, samples,
techniques, pricing methods or information, sales reports, details of
contracts, discount policies, market research, promotional information,
financial information, methods of operation, inventions, business plans,
customer and prospective customer lists, customer and prospective customer
information, supplier and vendor identities, including sources of supplies,
characteristics and agreements and information concerning Masksheets’s
employees, services, products and operations and information relating to the
services used and preferred by Masksheets’s clients, and any intellectual
property information, including but not limited to, (a) the identities, contact
information and /or sales information relating to Masksheets Affiliate,
customers, partners and/or suppliers that is contained in or derived from any Masksheets
Affiliate’s User Content in any form or medium; or (b) any such Confidential
Information that is derived from any reports issued by Masksheets to you as a
participating Masksheets Affiliate in the Masksheets Affiliate Referral
Program; or to which you would not otherwise have access or would not otherwise
have acquired, but for your relationship with Masksheets as a Masksheets
Affiliate. Confidential Information shall not be directly or indirectly
disclosed by you (or any person or entity acting on your behalf) to any third
party and shall not be used for any purpose other than the participation in the
Masksheets Affiliate Referral Program in compliance with the terms of this
Agreement. Confidential Information shall not, however, include any information
which (i) was publicly known and made generally available in the public domain
prior to the time of disclosure by Masksheets; (ii) becomes publicly known and
made generally available after disclosure by Masksheets to you through no
action or inaction of you; (iii) is already in your possession, through no
unauthorized disclosure by a third party, at the time of disclosure by Masksheets
as shown by your files and records immediately prior to the time of disclosure;
(iv) is obtained by you from a third party without a breach of such third
party’s obligations of confidentiality; (v) is independently developed by you
without use of or reference to Masksheets’s Confidential Information, as shown
by documents and other competent evidence in your possession; (vi) is required
by law to be disclosed by you, provided that you give Masksheets prompt written
notice of such requirement prior to such disclosure and assistance in obtaining
an order protecting the information from public disclosure.
9) Termination:
You understand and agree that Masksheets, in its sole
discretion, may terminate the Masksheets Affiliate Referral Program at any time
for any or no reason by giving you written notice of such decision (email
acceptable). In addition, you understand that Masksheets may immediately
terminate you as a Masksheets Affiliate for any reason, including any breach of
any term or condition of the Masksheets Referral Program, and you understand
that in any such termination due to your breach, Masksheets has the right, in
its sole discretion, to pursue any and all legal and/or equitable remedies
against you. You also understand and agree that you may terminate your
participation as a Masksheets Affiliate under this Agreement for any reason at
any time by giving Masksheets written notice to contact@masksheets.com. Upon
the earlier of: (a) the termination of the Masksheets Affiliate Referral
Program; or (b) your termination as a Masksheets Affiliate either by you or Masksheets,
you hereby expressly and unconditionally understand and acknowledge that (i)
you will immediately and permanently lose all benefits and privileges available
to you as a Masksheets Affiliate, including, but not limited to, rights to the User
Content, Submissions, Attributable Commissions, and other compensation, other
than those which have become due and payable (taking into account any
deductions from commissions due to returns, chargeback, etc.) prior to or on
such termination; (ii) you shall cease performing and holding yourself out as
being a Masksheets Affiliate and cease any form of communication relating to Masksheets’s
Products, retailers, manufacturers or the commissions that you may have derived
from your participation in the Masksheets Affiliate Referral Program; (iii) you
shall immediately discontinue using the Brand name, trademark and all other
Brand related materials and information, including any and all Confidential
Information and intellectual property, and all derivatives of such intellectual
property, in postings on any media, medium, platform, website, or other
promotional material; and (iv) you shall immediately return or destroy all
Confidential Information.
10) Your Representations and Warranties:
You represent and warrant that: (a) you are at least 18
years of age; (b) your participation in the Masksheets Affiliate Referral
Program does not violate terms of any agreement to which you are bound or any
applicable laws, rules and regulations, and you shall not engage in any act or
omission that constitutes a violation of any such agreements or applicable
laws, rules or regulations; (c) you are and will be the sole author of the User
Content, and if the User Content includes any Photos or Videos, you are the
only person who appears in the Photos or Videos or you have the express
authorization of any other person(s) in your Photos and Videos, if applicable;
you are the photographer of the Photos or Videos or you have secured the rights
from the photographer necessary to allow you to grant the rights granted herein
to us; and if Videos contain any music, you have secured the rights to use any
such music in your User Content; (d) the use of the User Content, the Photos or
Videos or Submissions as permitted hereunder will not violate or infringe upon
the rights of any third party; (e) you have the full and exclusive right and
authority to enter into this Agreement; (f) there is nothing in your personal
background that that may reflect negatively on Masksheets if any of the User
Content, the Photos or Videos or Submissions is used in Masksheets’s
advertising; and (g) the User Content, the Photos and Videos or Submissions
represent fair, accurate, and truthful depictions of what is represented, and
specifically: (i) any Products depicted are the actual Products, without any
enhancement, alteration, or additional ingredients; (ii) any Products depicted
are used in conformity with the instructions on the packaging; (iii) any
demonstrations are depicted without any special effects or any other method
which would enhance or alter the performance or appearance depicted; and (iv)
the User Content, the Photos and Videos or Submissions are a fair
representation of the actual performance and appearance of the Products as
shown therein.
11) Indemnification:
To the fullest extent allowed by law, you agree to
release, discharge, defend, indemnify and hold harmless Masksheets and any of
its equity-holders, officers, directors, employees, agents, representatives,
successor and assigns (collectively, the “Released Parties”) from any liability,
demand, claim, damage, judgment, cost, loss, expense and obligations of any
kind (including reasonable attorneys’ fees), arising out: (a) use by any of the
Released Parties of the User Content, the Photos or Videos (including any music
contained therein) or Submissions, any information you provide in connection
with any such materials, and your name, social media platform user name,
performance, image (including, without limitation, any social media profile
photo) and/or likeness for advertising, publicity, promotional and trade
purposes; (b) your violation of any term of this Agreement; (c) a breach of
your representations and warranties set forth herein; and (d) your violation of
any law or the rights of a third party (including, without limitation, any
copyright, property, right of publicity or privacy right). This indemnification
obligation will survive the termination of this Agreement and any Released
Party’s use of the User Content, the Photos or Videos or Submissions.
12) Risk & Limited Remedies:
a. YOU HEREBY UNDERSTAND AND ACKNOWLEDGE THAT BEING A MASKSHEETS
AFFILATE IN THE MASKSHEETS AFFILATE REFERRAL PROGRAM INVOLVES SOME RISK. IF
ANYTHING HAPPENS WHICH RESULTS IN LIABILITY OR LOSS TO YOU, YOUR REMEDIES
AGAINST OR FROM MASKSHEETS ARE VERY LIMITED.
b. YOU FURTHER UNDERSTAND AND AGREE THAT ANY DISPUTE OR
LIABILITY OR LOSS CLAIM(S), SHALL BE RESOLVED FIRST BY NEGOTATION WITH MASKSHEETS
AND IF NEGOTIATION IS UNSUCESSFUL, THEN PARTIES SHALL ENGAGE IN BINDING
ARBITRATION.
c. YOU UNDERSTAND, ACKNOWLEDGE AND ACCEPT THE FACT THAT
BEING A MASKSHEETS AFFILATE IS COMPLETELY VOLUNTARY AND IF YOU ARE NOT
COMFORTABLE WITH ANY ASPECT OF THE MASKSHEETS AFFILATE REFERRAL PROGRAM,
INCLUDING BUT NOT LIMITED, TO THE RISK & LIMITED REMEDIES, YOU CAN AND MUST
CHOOSE NOT TO BE A MASKSHEETS AFFILATE.
d. THE RELEASED PARTIES SHALL NOT BE LIABLE FOR, AND YOU
HEREBY KNOWINGLY, EXPRESSLY AND UNCONDITIONALLY, TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW, WAIVE AND RELEASE THE RELEASED PARTIES FROM,
AND WILL NOT RELY ON THE RELEASED PARTIES IN ANY MANNER WHATSOEVER, FOR ANY AND
ALL CLAIMS AND LIABILITY FOR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES
ARISING OUT OF MASKSHEETS’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS
AGREEMENTS. ADDITIONALLY, YOU HEREBY KNOWINGLY, EXPRESSLY AND UNCONDITIONALLY,
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WAIVE AND RELEASE THE
RELEASED PARTIES FROM, AND WILL NOT RELY ON THE RELEASED PARTIES IN ANY MANNER
WHATSOEVER, FOR ANY AND ALL CLAIMS AND LIABILITY FOR DIRECT DAMAGES IN EXCESS
OF $100.00 USD.
13) Dispute Resolution:
a. If a dispute arises relating to any relationship,
contractual or otherwise, between or among Masksheets, its officers, employees,
members, agents, attorneys, partners, Masksheets Affiliates or vendors (“Party”
or “Parties”), or arising out of any Products sold by Masksheets or you as a Masksheets
Affiliate, the Parties agree to attempt in good faith to resolve any such
dispute in an amicable and mutually satisfactory manner.
b. In the event such efforts are unsuccessful for any
reason, either Party may serve a written notice of arbitration (the "Notice
of Arbitration") on the other Party. Notice of Arbitration shall be
personally delivered or sent by prepaid registered mail, courier, facsimile
transmission, email or by such other means of telecommunication that provides a
record of sending the Notice of Arbitration and shall be effective on receipt
thereof by the Party to whom it is addressed. The Notice of Arbitration shall
be dated, and, without prejudice to any right under the applicable rules
permitting subsequent modifications, shall specify the claims or issues which
are to be arbitrated. The Parties shall schedule an arbitration to occur in Queens
County, State of New York, U.S.A. within 45 calendar days of receipt of the
Notice of Arbitration.
c. THE PARTIES SPECIFICALLY AGREE THAT, IN ORDER TO
PROMOTE TO THE FULLEST EXTENT REASONABLY POSSIBLE A MUTUALLY AMICABLE
RESOLUTION OF THE DISPUTE IN A TIMELY, EFFICIENT AND COST-EFFECTIVE MANNER,
THEY KNOWINGLY AND UNCONDITIONALLY WAIVE ITS/HIS/HER RESPECTIVE RIGHTS TO A
TRIAL BY JURY AND SHALL SETTLE ITS/HIS/HER DISPUTE SOLELY BY SUBMITTING THE
CONTROVERSY TO BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL RULES OF
JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES AND
PURSUANT TO JAMS' STREAMLINED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT
PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A
COURT OF APPROPRIATE JURISDICTION. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT IT/HE/SHE
HAD THE OPPORTUNITY TO DISCUSS THIS CLAUSE WITH AN ATTORNEY AND/OR A
PROFESSIONAL OF THEIR CHOICE.
d. The Parties shall attempt to select a mutually
agreeable arbitrator from JAMS’ Panel of Arbitrators. If the Parties cannot
agree on an arbitrator or an arbitrator is not selected by agreement within
five (5) business days of receipt of the Notice of Arbitration and paying of
the filing fees, an arbitrator shall be selected in accordance with the
Commercial Rules of JAMS.
e. The Arbitration shall be governed by the Federal
Arbitration Act, 9 U.S.C. §1 et. seq., and the judgment upon the award rendered
by the arbitrator may be entered by any court having jurisdiction to enter the
judgement. Either Party may elect to participate in the arbitration telephonically.
Any substantive or procedural rights other than the enforceability of this
Dispute Resolution Policy shall be governed solely and exclusively by New York law,
without regards to New York’s conflict of laws principles.
f. The Parties agree that any arbitration proceeding will
be conducted on an individual, not a class-wide, basis, and that any proceeding
between the Parties may not be consolidated with another proceeding between one
of the Parties and any other entity or person. THE PARTIES KNOWINGLY AND
SPECIFICALLY WAIVE ANY RIGHT TO CLASS-WIDE TREATMENT OF ANY CLAIM COVERED BY
THIS AGREEMENT AND DISPUTE RESOLUTION POLICY.
g. The Parties further expressly agree that (i) the
arbitrator shall only reach his/her decision by applying strict rules of law to
the facts, (ii) the arbitration shall be conducted in the English language, in Queens
County, State of New York, (iii) the Party in whose favor the arbitration award
is rendered shall be entitled to recover all costs and expenses of the arbitration,
including, but not limited to, reasonable legal fees, expert or other
professional fees, and the cost and expense of administration of the
arbitration proceedings, and any costs and reasonable legal fees incurred in
executing on or enforcing the arbitration award, and (iv) the arbitration award
shall be issued in Queens County, State of New York, U.S.A.
h. The Parties, JAMS, and the arbitrator shall maintain
the confidentiality of the entire arbitration process and may not disclose to
any other person not directly involved in the arbitration process: (i) the
substance of, or basis for, the controversy, dispute, or claim; (ii) the
content of any testimony or other evidence presented at an arbitration hearing
or obtained through discovery in the arbitration; or (iii) the terms or amount
of any arbitration award. JAMS and the arbitrator shall have the authority to
make appropriate rulings to safeguard confidentiality unless the law provides
to the contrary.
i. Except as provided in the following sentences, no
party shall be entitled to commence or maintain any action in a court of law
upon any matter in dispute until such matter shall have been submitted and
determined as provided herein and then only for the enforcement of such
arbitration award. Provided that, notwithstanding this Dispute Resolution
policy, either Party may apply to a court of competent jurisdiction in Queens
County, State of New York, to seek injunctive relief before or after the
pendency of any arbitration proceeding. The institution of any action for
injunctive relief shall not constitute a waiver of the right or obligation of
any Party to submit any claim seeking relief other than injunctive relief to
arbitration. Judgment upon the award may be entered by the United States District
Court or Queens County, State of New York, or application may be made to such
court for the judicial acceptance of the award and order of enforcement, as the
case may be, if the arbitrator's award or decision is not complied with within
seven (7) calendar days of date the arbitrator's decision is issued.
j. Arbitration in accordance with the terms of this
Dispute Resolution policy shall be the sole and exclusive procedure for
resolution of disputes between the Parties, including any disputes that might
arise after termination of this Agreement.
k. In any arbitration arising out of or related to this
Agreement, the arbitrator(s) are not empowered to award punitive or exemplary
damages, except where permitted by statute, and the Parties waive any right to
recover any such damages. Furthermore, in any arbitration arising out of or
related to this Agreement, the arbitrator(s) may not award any incidental,
indirect or consequential damages, including damages for lost profits.
l. Notwithstanding the foregoing, any revision,
modification, amendment to, or termination of the Dispute Resolution protocol
contained in this Agreement shall not apply to a dispute of which has actual
notice prior to the effective date of such revision, modification, amendment or
termination. The effective date of any such revision, modification, amendment
or termination shall be thirty (30) calendar days after the revision,
modification, amendment or termination is posted on the Company website at www.masksheets.com.
13) Governing Law:
Jurisdiction and venue of any matter not subject to
arbitration shall reside exclusively in Queens County, State of New York, or
the United States District Court for the District of New York. The laws of the
State of New York shall solely and exclusively govern all matters relating to
or arising from this Agreement
