WILL THESE TERMS EVER CHANGE?We are constantly trying to improve our Products and Services, so these Terms may need to change along with our Products and Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on the Terms located on our website (www.ernesta.com) and update the "Last Updated" date at the top of that page. Such changes will be effective on the date that they are posted to Ernesta's site. We may also, at our discretion, send you an email and/or notify you of changes by some other means. We and You agree that if you use the Services in any way after a change to the Terms is effective, that means you agree to be bound by all of the changes. If you don't agree to be bound by the updated Terms, then except as otherwise provided with respect to changes to the Arbitration Agreement, as set forth in the Arbitration Agreement section below , you may no longer use the Services.Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
WHAT ARE THE BASICS OF USING ERNESTA?You may be required to sign up for an account, which may include selecting a password and user name ("Ernesta User ID"), and providing us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Ernesta User ID a name that you do not have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a "Third Party Account"), such as those offered by Google, Facebook and Twitter. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.You represent and warrant that you are an individual of legal age to form a binding contract. If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization's or entity's behalf and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization or entity).You will only use the Services and Products in a manner that complies with all laws that apply to you. If your use of the Services or Products is prohibited by applicable laws, then you are not authorized to use the Services. We are not responsible if you use the Services or Products in a way that breaks the law.You may not share your Ernesta User ID, account or password with anyone, and you must protect the security of your Ernesta User ID, account, password and any other access tools or credentials. You are responsible for any activity associated with your Ernesta User ID and account. If you become aware of unauthorized access to your account, change your password and notify our Support team immediately at firstname.lastname@example.org .
WHAT ABOUT MESSAGING?As part of the Services, you may receive communications from Ernesta or through the Services, including messages that Ernesta sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Ernesta to send you information that we think may be of interest to you, which may include Ernesta using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Ernesta. You agree to indemnify and hold Ernesta harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to your breach of the foregoing.
ARE THERE RESTRICTIONS IN HOW I CAN USE THE SERVICES?You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Ernesta);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Ernesta;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of your Ernesta User ID, account or anyone else's (such as allowing someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or "spam" on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services' infrastructure);
(h) "crawls," "scrapes," or "spiders" any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) downloads, modifies, copies, distributes, displays, reproduces, publishes, creates derivative works from, stores or offers for sale any Content or information contained on or obtained from or through the Services;
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Products or Services;
(k) uses, reproduces or removes any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services; or
(l) is not otherwise expressly permitted in these Terms.
WHAT ARE MY RIGHTS IN THE SERVICES?The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the "Content") are protected by copyright and/or other intellectual property laws. You must abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you may not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's (including Ernesta's) rights.Subject to these Terms, we grant each user of the Services a personal, non-exclusive, non-sublicensable and non-transferable right to access and use the Services. This license does not include any resale or commercial use of the Services; any collection or commercial use of any photographs or other materials published on the Services; or any non-personal use of our Product names, listings, descriptions or prices. You understand that Ernesta owns the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but regardless of whether these functionalities exist, all the restrictions in this section still apply.
WHAT IF I SEE SOMETHING ON THE SERVICES THAT INFRINGES MY COPYRIGHT?In accordance with the DMCA, we've adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.Please contact Ernesta's Designated Agent at the following address:Ernesta Home, Inc.Attn: DMCA Designated Agent322 8th Avenue, Suite 601, New York, NY 10001, United States
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Ernesta's Designated Agent to Receive Notification of Claimed Infringement (our "Designated Agent," whose contact details are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
(c) terminate such content provider's access to the Services if he or she is a repeat offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
DO THE PRODUCTS OR SERVICES COST ANYTHING?Products are offered at the prices set forth on our website and you may choose to purchase Products through the https://www.ernesta.com website. Ernesta may limit or cancel quantities of Products purchased, and it reserves the right to refuse any order. In the event Ernesta needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. The prices displayed are quoted in U.S. currency and are valid only in the United States. Prices are subject to change at any time. Sales tax will be determined by the shipping address of the order and will automatically be added to the order. Ernesta is required by law to apply sales tax to orders to certain states. Purchased Products will be shipped to the shipping address of the order. Any payment terms presented to you in the process of purchasing Products are deemed part of these Terms.Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
b. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
c. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS HERE.
d. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. What if I want to delete my account?
WHAT ELSE DO I NEED TO KNOW?Cancellation of Order. All our orders are custom cut and prepared exclusively for you. Accordingly, as set forth in our Cancellation, Refund and Exchange Policy, you may only cancel an order within the first twenty-four (24) hours of purchasing a product from us. In order to cancel an order please contact us at email@example.com.Refunds and ExchangesAll our orders are custom cut and prepared exclusively for you. Accordingly, as set forth in our Cancellation, Refund and Exchange Policy, our policy is to only provide a refund if an order is cancelled within the first twenty-four (24) hours after an order is placed with us. After that twenty-four (24) hour period, we will not provide a refund or permit an exchange of our products (except pursuant to our Limited Warranty).Limited WarrantyWhat is Covered By The Limited WarrantyThis Limited Warranty covers the products purchased through our website at https://www.ernesta.com ("Products"). Any Product purchased from Ernesta will be free of material defects in materials and workmanship for a period of thirty (30) days from the date of delivery ("Warranty Period"), when used in an indoor, non-commercial setting. This Limited Warranty extends only to an original owner or original giftee of the Product and is not transferable to any future owner of the Product. This Limited Warranty is limited to the United States and does not apply to any Products purchased or used outside of the United States. Certain additional exclusions apply, as further described below.If the Product fails to conform to this Limited Warranty during the Warranty Period, Ernesta will, at its sole discretion, either (a) repair or replace any defective Product or component; or (b) refund the money actually paid (less any shipment costs) by the original purchaser for the Product. Repair or replacement may be made with a new product, at Ernesta's sole discretion. If the Product is no longer available, Ernesta may, at Ernesta's sole discretion, offer a replacement with an alternative Product. THE FOREGOING IS ERNESTA'S SOLE OBLIGATION AND YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS LIMITED WARRANTY.Any Product that has either been repaired or replaced under this Limited Warranty will be covered by the terms of this Limited Warranty for the longer of (a) thirty (30) days from the date of delivery of the repaired Product or replacement Product, or (b) the remaining portion of the Warranty Period for the original purchase.This Limited Warranty does not cover the following (collectively "Ineligible Products"): Products that have defects or damage arising or resulting from: (a) modifications, alterations, tampering, or improper maintenance or repairs of Products by you or any person or third party other than Ernesta or its designee following delivery to you; (b) handling, storage, installation, testing, or use not in accordance with these Terms or other written care instructions provided by Ernesta; (c) abuse or misuse of the Product, improper or abnormal use, or neglect; or (d) events outside of Ernesta's reasonable control, including Acts of God, lightning, flood, tornado, earthquake, or hurricane. This Limited Warranty also does not cover changes in the appearance of the Product resulting from ordinary use, including the natural alteration of colors or materials resulting from ordinary use over time.This Limited Warranty does not apply to our website, services or applications, any content contained therein or anything other than the Products. This warranty gives you specific legal rights, and you may also have other rights which vary from State to State. Likewise, some of the limitations in this Limited Warranty may not apply in certain states. The terms of this Limited Warranty will apply to the extent permitted by applicable law. For a full description of your legal rights you should refer to the laws applicable in your jurisdiction and you may wish to contact a relevant consumer advisory service.Making A Claim Under The WarrantyIn order to make a claim under this Limited Warranty, the owner of the Product must notify Ernesta by contacting us at firstname.lastname@example.org or writing to us at Customer Service - Warranty, Ernesta Home, Inc., 322 8th Avenue, Suite 601, New York, New York 10001 during the Warranty Period. Each claim for a warranty must include the name of the product, the order number and a description of the alleged failures. Ernesta will have no warranty obligations with respect to a Product that it deems, in its reasonable discretion, to be an Ineligible Product (defined above).Warranty Disclaimer. EXCEPT AS EXPLICITLY SET FORTH IN THE LIMITED WARRANTY ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ERNESTA AND ITS LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (ERNESTA AND ALL SUCH PARTIES TOGETHER, THE "ERNESTA PARTIES") DISCLAIM ALL AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED OR OTHERWISE) CONCERNING THE SERVICES OR PRODUCTS, AND THE ERNESTA PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES OR ANY CLAIMS, ACTIONS, SUITS, COSTS, EXPENSES, DAMAGES OR LIABILITIES ARISING OUT OF USE OF THE SERVICES OR PRODUCTS. THE ERNESTA PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS. EXCEPT AS EXPLICITLY SET FORTH IN THE LIMITED WARRANTY ABOVE, PRODUCTS AND SERVICES PURCHASED OR OFFERED (WHETHER OR NOT FOLLOWING SUCH RECOMMENDATIONS AND SUGGESTIONS) THROUGH THE SERVICES ARE PROVIDED "AS-IS" AND WITHOUT ANY WARRANTY OF ANY KIND FROM THE ERNESTA PARTIES OR OTHERS (UNLESS PROVIDED EXPRESSLY AND UNAMBIGUOUSLY IN WRITING BY A DESIGNATED THIRD PARTY FOR A SPECIFIC PRODUCT).ALL IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS THAT CANNOT BE MODIFIED OR DISCLAIMED UNDER APPLICABLE LAW ARE HEREBY LIMITED TO THE WARRANTY PERIOD SET FORTH IN THE LIMITED WARRANTY ABOVE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.DISCLAIMER AS TO SERVICES AND CONTENT. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED BY ERNESTA (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES SUCH AS NEW JERSEY DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE ERNESTA PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR INJURIES, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID BY YOU TO ERNESTA IN CONNECTION WITH THE PRODUCT(S) SUBJECT TO THE APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.Indemnity. You agree to indemnify and hold the Ernesta Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).Successors; Assignment. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Ernesta's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations in our sole discretion without notice to you or your consent.Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Ernesta and limits the manner in which you can seek relief from Ernesta.
Notices. You consent to receive all communications including notices, agreements, disclosures, or other information from Ernesta electronically, including by email. For support-related inquiries, you may email email@example.com. For all other notices to Ernesta, You may write to Ernesta at 322 8th Avenue, Suite 601, New York, NY 10001, United States.Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Ernesta may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. Except as set forth in the Arbitration Agreement above, if any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.You and Ernesta agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Ernesta, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Ernesta, and you do not have any authority of any kind to bind Ernesta in any respect whatsoever.Except as expressly set forth in the sections above regarding the arbitration agreement, you and Ernesta agree there are no third-party beneficiaries intended under these Terms.
(a) Third-Party Beneficiaries: Both you and Ernesta acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Ernesta's officers, directors, employees and independent contractors ("Personnel") are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(b) Arbitration Rules; Applicability of Arbitration Agreement. You and We agree that before initiating any Dispute or arbitration proceeding, the parties shall use their best efforts to resolve any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. You may initiate such good-faith negotiations by sending a Notice of Dispute to firstname.lastname@example.org or sending us a notice at Legal Department, Ernesta Home, Inc., 322 8th Avenue, Suite 601, New York, New York 10001. We may initiate such good-faith negotiations by sending a Notice of Dispute to the email and/or mailing address you have provided to us. Any party who initiates such negotiations shall plainly state the nature and basis of their dispute, claim, question, or disagreement, as well as the relief that party seeks. If the parties are unable to resolve the Dispute 60 days from the initiation of negotiations, then you or We may initiate a binding arbitration proceeding in New York County, New York. A party who desires to initiate arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Streamlined Arbitration Rules (the "Rules") then in effect. The Rules are available at www.jamsadr.com or by calling 1-800-352-5267. The arbitration will proceed in the English language. Except to the extent modified by these Terms, the arbitration shall proceed in accordance with the Rules then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(c) Costs of Arbitration. Except as set forth in these Terms, the Rules will govern payment of all arbitration fees. If you assert a claim against Ernesta, you will be responsible for paying a $250 consumer filing fee. Ernesta will pay for all other arbitration fees for claims less than ten thousand ($10,000) dollars. If your Dispute is for less than ten thousand ($10,000) dollars (including attorneys' fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, Ernesta will reimburse your initial filing fee. Ernesta will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(d) Small Claims Court; Infringement. Either you or Ernesta may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(e) Waiver of Jury Trial. YOU AND ERNESTA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Ernesta are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Ernesta over whether to vacate or enforce an arbitration award, YOU AND ERNESTA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(f) Waiver of Class or Consolidated Actions. YOU AND ERNESTA AGREE THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Ernesta is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (h) below.
(g) Opt-out. You have the right to opt out of the arbitration agreement in these Terms by sending written notice of your decision to opt out to the following address: 322 8th Avenue, Suite 601, New York, NY 10001, United States postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms' arbitration agreement.
(h) Exclusive Venue. If you send the opt-out notice in (g), and/or in any circumstances where the foregoing arbitration agreement permits either you or Ernesta to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Ernesta agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. With the exception of that prohibition, if an arbitrator or court of competent jurisdiction decides that any part of this section is invalid or unenforceable, the remaining provisions of this section will still apply. This arbitration agreement will survive the termination of your relationship with Ernesta.
(i) If Ernesta changes any of the terms of this Arbitration Agreement after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending written notice of your decision to opt out to the address set forth in subsection (g) above within 30 days of the date such change became effective, as indicated on the "Last Updated" date on these Terms on Ernesta's website (www.ernesta.com), or the date of Ernesta's notice to you notifying you of such Change, whichever came first. By rejecting any change, You are agreeing that You will arbitrate any Dispute between you and Ernesta in accordance with the terms of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms by not rejecting those changes as set forth in this subsection).