TERMS OF SERVICE

1. Account Registration

In order to access or use certain features of the Service must register for an account (“Account”). You agree to provide accurate, current and complete information during the registration process and at all times when you use the Service and to update such information if it changes. Nymbus reserves the right to suspend or terminate your Account if any information provided during the registration process or at other times proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Nymbus of any unauthorized use of your Account. To use our Services, you must be at least the age of majority in your state or province of residence, or otherwise recognized as being able to form legally binding contracts under applicable law.

2. Privacy

Nymbus’s Privacy Policy governs Nymbus’s collection and use of your personal information.

3. Sale of Products and Services

3.1. Products

End-Users Only/Resale Prohibited: this Site is intended only for sales to end-user customers who may use the Nymbus products for personal or professional purposes. Products sold through the Site are not authorized for resale or export. The resale of a Nymbus product without the authorization of Nymbus is an infringement of Nymbus’s intellectual property rights. By submitting an order, you agree that you are not purchasing Nymbus’s products for resale.

Descriptions: we do our best to provide accurate information on our product pages – including product descriptions, prices, shipping estimates, etc. However, we reserve the right to correct pricing errors that may inadvertently occur (which may require us to revoke an offer). Prices and availability are subject to change. Your order is subject to cancellation by us, in our sole discretion.

Order Acceptance: we reserve the right to cancel or refuse any order for any reason at any stage of the online ordering process, including after an order has been submitted and whether or not the order has been confirmed. Some situations that may result in cancellation include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will attempt to contact you if all or any portion of your order is cancelled, or if additional information is required to accept your order. If we do cancel your order, we will refund you any amounts that you have been charged.

Payments: generally, we do not charge your payment method until after your order has shipped. However, we may pre-authorize the total purchase amount (including applicable taxes and shipping costs) with your authorized payment method once when you place your order. You cannot make changes to your order after it has been placed.

Risk of Loss: All purchases of physical products are made subject to a shipping contract. Risk of loss and title for purchases pass to you upon our delivery to the carrier. You must notify us within 21 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged.

Shipping, Returns, Manufacturer Warranty: please see our Shipping Policy and Refund Policy provided on the specific Nymbus Site on which you made a purchase for further information about purchasing our Services. If you are an EU resident, you also have a legal right to withdraw from this contract without giving any reason within 14 days of receiving your purchased goods.

3.2. Subscription Services

If you purchase a subscription service from Nymbus (“Subscription”), your Subscription will continue and automatically renew until terminated. To use the Nymbus Service you must have Internet access, a device that can utilize the Nymbus Service and, if applicable, a valid form of payment. You authorize us to charge any form of payment you provide, in connection with your subscription. You must cancel your subscription before it renews in order to avoid billing of the subscription fees for the next billing cycle. Your billing will include your subscription fees and any applicable taxes and transaction fees.

3.3. Free Trials for Subscriptions

Your Nymbus Service may start with a free trial period. Any free trial period is at the sole discretion of Nymbus and we may limit eligibility or duration to prevent misuse. We reserve the right to terminate any free trial period at any time. We may charge you a subscription fee upon expiration of your free trial period. To view the subscription price, please access your account information when you login for the Nymbus Services.

3.4. Cancellation of Subscriptions

You can cancel your Subscription at any time by contacting us at support@lashcosmetics.co or completing our Subscription Cancellation Request form. Following a cancellation you request, you will continue to have access to the Subscription through the end of your subscription period. We may issue you a refund at our discretion or as otherwise required by law. If you are issued a refund, you may lose access to the Subscription immediately.

4. Ownership and Intellectual Property

The Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Nymbus and its licensors exclusively own all right, title and interest in and to the Service and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.
All trademarks, service marks, logos, trade names and any other proprietary designations of Nymbus used herein are trademarks or registered trademarks of Nymbus. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

5. Your License to Use the Services

“Content” on the Service means any links, text, graphics, images, music, audio, video, photos, information, code, or other materials available on the Service. Subject to your compliance with these Terms, Nymbus grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Service, to access, use, view and print any Content and the right to download one copy of the application to any single device solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Nymbus or its licensors, except for the licenses and rights expressly granted in these Terms.

6. User Submitted Content

You are solely responsible for any Content you submit, post, display or make available through the Service (your “User Content”). Unless otherwise agreed in writing, Nymbus does not claim any ownership rights in your Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Content. By making available User Content through the Service, you hereby grant to Nymbus a worldwide, irrevocable, perpetual, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license to use, copy, adapt, modify, distribute, reference, store, cache, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, making publicly available and otherwise exploit such User Content in any form, medium or technology now known or later developed for any purposes, including for both commercial and non-commercial purposes without compensation to you, except as otherwise provided in the Nymbus Privacy Policy as it relates to your personal data and private Content.

You acknowledge and agree that you are solely responsible for all User Content. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, permissions, consents and releases that are necessary to grant to Nymbus the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the Content or Nymbus’s use of the User Content (or any portion thereof) otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

7. Feedback

If you choose to provide feedback, comments and suggestions for improvements to the Service (orally or written) (“Feedback”), you acknowledge and agree that all Feedback will be Nymbus’s sole and exclusive property and you hereby irrevocably assign to Nymbus and agree to irrevocably assign to Nymbus all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.

8. Copyright Policy

Nymbus respects copyright law and expects its users to do the same. Nymbus may terminate access to the Service in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

9. General Prohibitions and Acceptable Use Standards

You agree not to do any of the following:

• Access or use the Service unless you can form legally binding contracts under applicable law and are at least the age of majority in your state or province of residence.
• Post, upload, publish, submit or transmit any Content (including any links thereto) that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or any duty of confidentiality that you owe to another party; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) promotes, encourages, or engages in terrorism violence against people, animals, or property; (vii) promotes, demonstrates or constitutes illegal or harmful activities or substances; or (viii) promotes, encourages, or engages in child pornography or the exploitation of children.
• Use, display, mirror or frame the Service, or any individual element within the Service, Nymbus’s name, any Nymbus trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Nymbus’s express written consent;
• Access, tamper with, or use non-public areas of the Service, Nymbus’s computer systems, or the technical delivery systems of Nymbus’s providers;
• Attempt to probe, scan, or test the vulnerability of any Nymbus system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Nymbus or any of Nymbus’s providers or any other third party (including another user) to protect the Service or Content;
• Attempt to access or search the Service or Content or download Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Nymbus or other generally available third party web browsers;
• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
• Use any meta tags or other hidden text or metadata utilizing a Nymbus trademark, logo URL or product name without Nymbus’s express written consent;
• Use the Service or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Content to send altered, deceptive or false source-identifying information;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content
• Interfere with, or attempt to interfere with, the operation of the Service and Content, the access of any user, host or network, including, without limitation, hacking, cracking, sending or installing any kind of computer virus designed to be capable of disrupting, damaging, or limiting the functionality of any software or hardware, overloading, flooding, spamming, or mail-bombing the Service;
• Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
• Impersonate or misrepresent your affiliation with any person or entity;
• Violate any applicable law or regulation; or
• Encourage or enable any other individual to do any of the foregoing.

Nymbus may investigate and prosecute violations of any of the above to the fullest extent of the law. Nymbus may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Nymbus has no obligation to monitor your access to or use of the Service or Content or to review or edit any Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Nymbus reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Content, that Nymbus, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Service or otherwise violates any applicable law.

10. Links

The Service may contain links to third-party websites. Nymbus does not control or endorse these third-party websites. Nymbus is not responsible for the availability, appropriateness, accuracy, content, advertising, product or services of such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. By using the Service, you expressly release Nymbus from any and all liability arising from your use of any third-party website or on-line resource. Accordingly, Nymbus encourages you to be aware when you leave the Service and to review the terms and conditions, privacy policies, and other governing documents of each website that you may visit.

11. Modifications

Nymbus reserves the right, at its sole discretion, to modify, discontinue or terminate the Service (including, without limitation, the fees and benefits for any Subscriptions) or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Service or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Service after we have posted a modification on the Site or via the Service or have provided you with notice of a modification, you are indicating that your agreement and express consent to be bound by the modified Terms. You may also be asked to re-acknowledge and re-accept the Terms following any material changes. If the modified Terms are not acceptable to you, you may cease using the Service and this is your only recourse.

12. Termination and Account Cancellation

If you breach any of these Terms or otherwise violate applicable law, in its sole discretion and without prior notice to you, Nymbus has the right to suspend, disable, terminate or cancel your Account and/or terminate these Terms – and you shall not be entitled to any refunds, credits or other consideration for any forfeited Subscription fees. Except as set forth herein, Nymbus is under no obligation to continue to support the Service in any way, or to provide you with updates or error corrections to Service – provided, however, that we may, in our sole discretion, provide you will a refund, credit or other consideration if you are a subscriber and we suspend or discontinue your Subscription. Except as otherwise expressly stated, your rights under these Terms will terminate immediately and automatically, with or without notice in Nymbus’s sole discretion, if Nymbus ceases to support the Service. Nymbus reserves the right to revoke, suspend, cancel or disable your access to and use of the Service (not including the Subscription services) and Content at any time, with or without cause. Except as otherwise specified in Section 3, you may cancel your Account at any time by contacting Nymbus Support at support@lashcosmetics.co.

13. Disclaimers

OTHER THAN AS EXPRESSLY PROVIDED IN WRITING BY NYMBUS IN CONNECTION WITH YOUR PURCHASE OF A NYMBUS PRODUCT, THE SERVICE AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NYMBUS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NYMBUS MAKES NO WARRANTY THAT THE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NYMBUS MAKES NO WARRANTY THAT NYMBUS WILL CONTINUE TO OFFER OR MAKE AVAILABLE THE SERVICES, INCLUDING WITHOUT LIMITATION ANY PARTICULAR SOFTWARE FOR ANY PARTICULAR LENGTH OF TIME AND NYMBUS RESERVES THE RIGHT TO CHANGE AND UPDATE THE SERVICE AND ANY SOFTWARE WITHOUT NOTICE TO YOU. NYMBUS MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NYMBUS OR THROUGH THE SERVICE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE.

THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS OR YOUR USE OF THE SERVICE.

14. Indemnity

You agree to defend, indemnify, and hold Nymbus, its subsidiaries and affiliates, and their officers, directors, employees, agents, representatives and attorneys harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Service or Content; (ii) your violation of these Terms or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive the termination or expiration of these Terms or your use of the Service.

15. Limitation and Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER NYMBUS NOR ANY OTHER COMPANY OR INDIVIDUAL INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NYMBUS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT NEW JERSEY LAW APPLIES TO YOU, THIS EXCLUSION OR LIMITATION OF LIABILITY DOES NOT APPLY TO YOU.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL NYMBUS’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL AND MATERIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NYMBUS AND YOU.

16. Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in Wilmington, Delaware and each of the parties hereto waives any objection to exclusive jurisdiction and venue in such courts.

17. Entire Agreement

Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Nymbus and you regarding the Service and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Nymbus and you regarding the Service and Content.

18. Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Nymbus’s prior written consent and any attempt by you to do so will be null and of no effect. Nymbus may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

19. Notices

You consent to receive notifications from Nymbus electronically to the email address you provide. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing. You agree that you can store such electronic communications such that they remain accessible to you in unchanged form.

20. Dispute Resolution; Binding Arbitration Clause and Class Waiver

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE SUBMITTED TO ARBITRATION) AND LIMITING YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS.

As detailed herein, the Terms of Use mandate that all disputes between you and Nymbus be resolved first through an informal dispute resolution process. In the event informal resolution fails, the Terms of Use further mandate that all disputes (except those identified in Section 20.3) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, you should read the entirety of Section 20 carefully as it may significantly affect your legal rights.

20.1 Informal Dispute Resolution.

For any and all disputes between you and Nymbus, the parties shall use their best efforts to settle informally the dispute, claim, question, or disagreement and to engage in good faith negotiations. Failure to engage in this process could result in the award of fees against you in arbitration.

To initiate informal dispute resolution, the initiating party must first send a written description of the dispute to the other party. For any dispute against Nymbus that you initiate, you agree to send to Nymbus (a) a written description of the dispute and (b) the email address(es) associated with your account through the following email address: support@lashcosmetics.co. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. For any dispute that Nymbus initiates, we will send our written description of the dispute to the email address associated with your use of the Services.

If the parties’ dispute is not resolved within sixty (60) days after receipt of the written description of the dispute by a party, you and Nymbus agree to resolve any remaining dispute through the additional dispute resolution provisions set forth below.

A good faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.

20.2 Binding Arbitration.

After the parties have engaged in a good-faith effort to resolve their dispute(s) in accordance with the Informal Dispute Resolution process (Section 20.1), and only if those efforts fail, then either party may initiate arbitration as set forth in this Section unless their dispute(s) fall under the categories set forth in Section 20.3, below.

If you determine to initiate arbitration, a copy of the arbitration demand must be emailed to support@lashcosmetics.co. If Nymbus is initiating arbitration, it will serve a copy of the demand to the email address associated with your use of the Services.

(a) Mutual Arbitration Agreement.

Except as set forth in Section 20.3 below, you and Nymbus agree that all claims, disputes, or disagreements that may arise out of or relating to the interpretation, applicability, enforceability, formation, or performance of these Terms of Use— including but not limited to any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Section 20.2 (collectively, the “Arbitration Agreement”). The arbitrator shall be empowered under this Arbitration Agreement to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider’s rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with this Section 20.2.

This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice opt-out provisions set forth in Sections 20.4 and 20.5.

This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and Nymbus expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.

Except as set forth in Section 20.2(c) below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

(b) WAIVER OF RIGHTS INCLUDING JURY TRIAL.

THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION IN SOME INSTANCES.

YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND NYMBUS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

(c) CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER.

YOU AND NYMBUS ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION 20.2(c) AND SECTION 20.2(e)(vi) BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF NYMBUS PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.

If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

If there is a final judicial determination that either the Class Arbitration and Collective Relief Waiver in this section, or that the provisions in this Section 20.2 are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court as provided herein, but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or Nymbus from participating in a class-wide settlement of claims.

(d) Arbitration Location.

If you are a resident of the United States, arbitration will take place in the county where you reside. For residents anywhere outside the United States, arbitration shall be initiated in Wilmington County, State of Delaware, United States of America, unless you and Nymbus otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue.
For any arbitration conducted in Wilmington County, State of Delaware, United States of America, You and Nymbus agree to submit to the personal jurisdiction of any federal or state court in Wilmington, Delaware, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. or certified mail and hereby waive any and all jurisdictional and venue defenses otherwise available.

(e) The Arbitration Rules.

(i) The Provider.

The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.

Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at http://www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.

You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section 20 while such challenge remains pending before NAM the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

(ii) Arbitration Demand Must Contain Sufficient Information.

Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms of Use. The arbitrator and/or NAM may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or to these Terms of Use.

(iii) Arbitration Conducted on Papers in Some Circumstances.

If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents that you and Nymbus submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.

(iv) Dispositive Motions.

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.

(v) Batching.

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with Section 20.2(e)(i) if NAM is unavailable) against Nymbus within reasonably close temporal proximity (“Mass Filing”), the parties agree (A) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (B) to designate one arbitrator for each batch; (C) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with 20.2(e)(i) if NAM is unavailable) in its discretion; (D) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (E) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Nymbus and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (F) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.

Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted.

You agree to cooperate in good faith with Nymbus and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and we agree that NAM may increase or decrease the batch size, or transfer a case between batches in the reasoned discretion of the NAM procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a NAM procedural arbitrator.

This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind.

(vi) No Class or Consolidated Arbitration Absent Written Consent.

Unless Nymbus otherwise consents in writing, which it may do on a case-by-case basis, Nymbus does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in Section 20.2(c) and this Section 20.2(e)(vi).

(vii) Arbitration Award.

The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with Section 20.2(c) above, and also must be consistent with the terms of the “Limitation and Liability” section of these Terms of Use as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.

20.3 Exceptions to Arbitration.

Notwithstanding the parties’ agreement to resolve all disputes through binding arbitration as set forth in Section 20.2:

(a) IP Disputes.

Either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, shall be exclusively brought in the state and federal courts located in Wilmington, Delaware.

(b) Small Claims Court and Statutes of Limitation.

Either party may elect to have disputes or claims resolved in a small claims court regardless of what forum the filing party initially chose, provided the disputes or claims are within the scope of that court’s jurisdiction.

Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.

(c) Jurisdiction/Service of Process.

For any dispute not subject to arbitration under this Section 20, you and Nymbus agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Wilmington, Delaware. You further agree to accept service of process by U.S. or certified mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

20.4 30-Day Right to Opt Out.

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice, signed by you, of your decision to opt-out to the following address: support@lashcosmetics.co. The notice must be sent within 30 days of june 13th 2024 or your first use of the Services, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of Section 20.2. If you opt-out of the arbitration provisions, Nymbus also will not be bound by them.

If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If Nymbus changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Service 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out of the Arbitration Agreement by providing notice as described in Section 20.4.

Nymbus will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Dispute Resolution” provisions by you and Nymbus.

20.5 Changes to this Section.

Nymbus will provide 30 days’ notice of the date of any material changes to this Section 20 by posting to the Sites. Changes will become effective on the 30th day and apply to all claims not yet filed. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which Nymbus does not have actual notice are subject to the revised clause.

21. Export Control and Economic Sanctions Laws

You agree to comply fully with all U.S. and foreign export control and economic sanctions laws and regulations that apply to the Services, including restrictions on any use of the Service where data is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Service, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government export embargo, or that has been sanctioned by the Office of Foreign Assets Control, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

22. Text Message Program

These SMS Terms and Conditions (the “SMS Terms”) govern the provision and delivery of text messages by Nymbus and our text message service providers.

Depending on your relationship with us and consents received, we or our service providers send text messages to: (1) provide you with information you requested from us; (2) update you regarding your orders and other transactions with us; and/or (3) respond to your customer service requests and other inquiries regarding your use of our services.

22.1 E-SIGN Disclosure.

By agreeing to these SMS Terms, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Nymbus at support@lashcosmetics.co with “Revoke Electronic Consent” in the subject line.

To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email Nymbus at support@lashcosmetics.co with contact information and the address for delivery.

22.2 Consent to Receipt of Nymbus Text Messages.

You may provide us with consent to send you text messages through our website (e.g. by providing us with your phone number and signing up for Nymbus text messages) or through communications or transactions with us (e.g. by initiating or agreeing to receive text message communications with customer service). By providing your consent, you agree to these SMS Terms, the Terms of Use, and our Privacy Policy.

By consenting to receive Nymbus text messages, you agree that Nymbus or its service providers may use any automated or non-automated technology to send you transactional and/or marketing text messages. You are not required to consent to marketing text messages as a condition of purchase.

Nymbus may terminate any text messaging services or your participation in our text message program at any time with or without notice, including, for example, before you have received any or all messages that you otherwise would have received, but these SMS Terms will still apply.

22.3 Costs of Nymbus Text Messages.

Nymbus does not charge you for our text message program. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.

22.4 Frequency of Text Messages.

We may send you one or more welcome messages or administrative messages, such as (in some cases), a request to confirm your opt-in. After that, you will receive recurring text messages, and the specific amount may vary depending on how you use our services (e.g. if you communicate with us through SMS, or if you send a HELP request).

22.5 Participating Carriers.

Nymbus text messages are supported on all U.S. carriers. Please note, however, that the supporting mobile carriers may change without notice, and the particular text message program you join may be limited to specific carriers. Nymbus and the mobile carriers (for example, T-Mobile) are not liable for delayed or undelivered messages.

22.6 Eligibility

By consenting to receive Nymbus text messages, you represent that you are 18 years of age or older and understand the obligations and agree to the terms set forth in these SMS Terms. You further represent that you are the subscriber of the cellular service at the mobile number provided or that you are authorized by the subscriber to sign-up for texts.

22.7 Opting Out of Nymbus Text Messages.

To opt out of text messages, you must text STOP to that number. Text HELP to that number for help. After doing so, we may send you confirmation of your opt-out via text message. You further agree that texting STOP in response to our text message is the only reasonable method of opting out of our text messages. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than “STOP” or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. If you have revoked consent and want to re-enroll in our text message program, you can re-enroll by texting START otherwise enrolling through our website or through communications with us.

22.8 Modifications to these SMS Terms.

We reserve the right to modify these SMS Terms, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your continued enrollment in Nymbus’s text messaging program shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.

23. General

The failure of Nymbus to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Nymbus. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

24. Contact Information

Questions about the Terms of Use should be sent to us at support@lashcosmetics.co.