Aesthetic Record Marketplace User Agreement
A. Introduction
Thank you for choosing Aesthetic Record Marketplace (“Marketplace”) for your business. Marketplace is a commerce platform that provides the tools and technology for merchants to set up an online store and sell products or services on the Marketplace website. The actual contract for sale is directly between the seller and buyer.
Any guidance we provide, such as pricing, shipping, listing, and sourcing is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Aesthetic Record has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of content provided by buyers or sellers; the ability of sellers to sell items; the ability of buyers to pay for items, or that a buyer and seller will actually complete a transaction.
This Aesthetic Record Marketplace User Agreement (“Agreement”), and all policies and additional terms posted on and in our websites, applications, tools, and services (“Services”) contains the terms and conditions that govern your access to and use of the Services and is an agreement between you or the business you represent and Aesthetic Record. By registering for or using the Services, you agree to be bound by the terms of this Agreement, including all policies referenced herein including but not limited to the Acceptable Use Policy and the Privacy Policy.
As used in this Agreement, “we,” “us,” “Aesthetic Record,” and “Marketplace” means the applicable Aesthetic Record contracting party and “you” means the registrant (if registering for or using a Service as an individual), or the business employing the registrant (if registering for or using a Service as a business) and any of its affiliates.
B. Account Activation
1. To access and use the Services, you must register for a Marketplace account (“Account”) by providing your full legal name, job title, business or employer name, current business or employer address, current business or employer phone number, a valid business or employer-issued email address, and any other information as required by Aesthetic Record. We may reject your application for an Account for any reason in our sole discretion. If any of the above-listed registration information changes, you must notify Aesthetic Record within 48 hours of any change via electronic mail with return receipt requested to info@aestheticrecord.com. Any personal data you provide to us will be handled in accordance with Aesthetic Record’s Privacy Policy.
2. You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you use the Services to open an Account.
3. You acknowledge that the person signing up for the Service by opening an Account will be the contracting party (“Marketplace Store Owner”) for the purposes of this Agreement and will be the person who is authorized to use any corresponding Account we may provide to the Marketplace Store Owner in connection with the Services.
4. If you are signing up for the Services on behalf of your business or employer, your business or employer shall be the Marketplace Store Owner and you must use your business or employer-issued email address.
5. Your Marketplace Store can only be associated with one Marketplace Store Owner. A Marketplace Store Owner may have multiple Marketplace Stores. “Marketplace Store” means the online store or physical retail location(s) associated with the Account.
6. All Marketplace Stores will operate under the Aesthetic Record domain. Although Marketplace Stores will have a subdomain associated with their account, any subdomains are wholly owned and operated exclusively under the Aesthetic Record domain.
7. You acknowledge that Aesthetic Record will use the approved business and/or employer-issued email address you provided when registering an Account or as updated by you from time to time as the primary method for communication with you.
8. Any password that we provide to you may only be used in accordance with this Agreement. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your Account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. Aesthetic Record will not be liable for any loss or damage from your failure to maintain the security of your Account and password. If your password is compromised, you must immediately change your password.
C. Content and License
1. In accordance with Aesthetic Record’s Acceptable Use Policy, you further agree that you are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”). You are responsible for the compliance of Materials with any applicable laws and regulations and for ensuring that all Materials are up-to-date.
2. Materials that violate any of Aesthetic Record’s policies may be modified, obfuscated, or deleted at any time in Aesthetic Record’s discretion. We may revise your Materials to supplement, remove, or correct information.
3. When you provide content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of the Services. “Intellectual Property Rights” means any patent, copyright, trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation, or infringement of any of the foregoing. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against Aesthetic Record, our assignees, our sublicensees, and their assignees in connection with our, those assignees’, and those sublicensees’ use of that content in connection with our provision, expansion, and promotion of the Services.
4. You represent and warrant that, for all content you provide in using or accessing the Services, you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Aesthetic Record takes no responsibility and assumes no liability for any content provided by you or any third party.
D. Payment of Fees
1. You are required to pay any and all applicable fees, including but not limited to your subscription that allows you to operate a Marketplace Store (“Subscription Fees”); fees for each sale that you make through the Marketplace Store when using POS Services (“Transaction Fees”), and any fees relating to your purchase or use of any products or services such as, including but not limited to, shipping, apps, themes, marketing and advertising, consulting and data migration, and the SMS Feature (“Additional Fees”). Together, the Subscription Fees, Transaction Fees and Additional Fees are referred to as the “Fees”. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
2. Subscription Fees are paid in advance by charging the approved credit card or bank account referenced further below in this Payment of Fees Section and will be billed in 30-day intervals (each such date known as a “Billing Date”). Transaction Fees are immediately deducted from the total amount of the sale, including any shipping and handling charges, upon the finalization of each Marketplace transaction that you are involved in. Additional Fees are paid immediately by charging the approved credit or bank account referenced further in this Payment of Fees Section. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice that will be sent to the Marketplace Store Owner via the approved business or employer-issued email address that was provided when registering for an Account or as updated from time to time. An invoice will also appear on the Account page of your Marketplace Store’s Dashboard. In the event Aesthetic Record is unable to charge your approved credit card or bank account for any Subscription or Additional Fees, Aesthetic Record, in its sole discretion, may suspend your Marketplace Store access until your payment information is updated and Aesthetic Record has been paid in full.
3. To use the Services, you must provide us with valid credit card information from a credit card or credit cards acceptable by Aesthetic Record as well as valid bank account information for a bank account or bank accounts acceptable by Aesthetic Record (conditions for acceptance may be modified or discontinued by us at any time without notice). You agree to update all credit card and bank account information to ensure that the information at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of your credit card, and to charge your credit card or debit your bank account for any sums payable by you to us (in reimbursement or otherwise).
4. If we determine that your actions or performance may result in returns, claims, disputes, violations of this Agreement or our policies, or other risks to Aesthetic Record or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to Aesthetic Record or third parties persist. For any amounts that we determine you owe us, we may (a) charge your credit card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to your bank account; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your Account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our policies, then we may in our sole discretion permanently withhold any payments to you.
5. We may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, claims, disputes, violations of this Agreement or our policies, or other risks to Aesthetic Record or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement or any applicable policies may result in their forfeiture. In addition, failure to timely pay Fees may result in the suspension and revocation of access to your Account and the Services. You may also be subject to late fees. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. If any outstanding Fees remain unpaid for 60 days following the date of suspension, Aesthetic Record reserves the right to terminate your Account.
6. As a security measure, we may, but are not required to, impose transaction limits relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction that would exceed any limit established by us for a security reason, or (ii) if we permit a Marketplace user to withdraw from a transaction because a Service is unavailable following the commencement of a transaction.
E. Tax Matters
1. All Fees are exclusive of applicable federal, provincial, sAesthetic Record Marketplace User Agreement
2. As between the parties, you will be responsible for the collection, reporting, and payment of any and all Taxes. To the extent that Aesthetic Record charges Taxes, such Taxes are calculated using the tax rates that apply based on the current business or employer address billing address that corresponds to your Account. Taxes will be billed to your credit card or bank account that corresponds to your Account. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to Aesthetic Record in our sole discretion of your exemption. If you are not charged Taxes by Aesthetic Record, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
3. All sums payable by you to Aesthetic Record under this Agreement shall be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by Aesthetic Record to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law shall be borne by you and paid separately to the relevant taxation authority. Aesthetic Record shall be entitled to charge the full amount of Fees stipulated under this Agreement to your credit card or bank account ignoring any such deduction or withholding that may be required.
F. Shipping and Refunds
1. For all physical goods ordered by customers through the Marketplace, all shipping charges will be determined by the Marketplace’s shipping calculator. We reserve the right at any time, and from time to time, to add, modify, suspend, or discontinue, the use of any shipping service integrations (or any part thereof) with or without notice. In the event Aesthetic Record no longer provides with you a mechanism to determine shipping charges, we may require you to determine the shipping and handling charges subject to Aesthetic Record’s sole discretion whether such shipping and handling charges are reasonable.
2. Aesthetic Record is not required to fulfill or ship orders for physical goods ordered through the Marketplace and you are responsible for and bear all risk related to fulfillment or shipping. It is your responsibility to validate the order and ship the order to the user on or before the expected ship date that you provide to the user. It is also your responsibility to log and track your orders, fulfill and ship your orders, and provide tracking to the user.
3. You agree to provide information to Aesthetic Record regarding fulfillment and order status and tracking (to the extent available) in each matter as requested by Aesthetic Record using the process we designate and we may make any of this information publicly available.
4. Because Marketplace transactions are only between buyers and sellers, sellers are solely responsible for issuing any refunds and managing the return process subject to Aesthetic Record’s sole discretion whether the seller’s actions are reasonable. In the event that a seller determines a refund is appropriate, Aesthetic Record will return the full transaction amount to the buyer and deduct the full transaction amount from the seller’s Account.
G. POS Services
1. You agree to use our POS Services for all Marketplace transactions, which means that you cannot concurrently use any other payment processing service for all Marketplace transactions. The POS Services include the Aesthetic Record POS software (“POS Software”), programs, documentation, apps, tools, internet-based services and components such as external payment platforms, and any updates thereto provided to you by Aesthetic Record.
2. Access to and use of the POS Services requires that you have an active and valid Account.
3. You agree to use the POS Services in accordance with all policies that may be provided and updated by Aesthetic Record from time to time.
4. You agree that you will pay a Transaction Fee as described in Section D above for each sale that you make when using POS Services. This fee is calculated as a percentage of the total amount of the sale. The total amount of the sale is the amount the buyer pays, including any shipping and handling charges. Sales tax is not included in the calculation. The fee for POS Services is 3.5% of the total amount of the sale.
H. Confidentiality
1. During the course of your use of the Services, you may receive Confidential Information. Confidential Information shall include, but shall not be limited to, any and all information associated with a party’s business and not publicly known, including specific business information, technical processes and formulas, security programs and practices, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary.
2. All Confidential Information will remain Aesthetic Record’s exclusive property. You agree to use Confidential Information solely as reasonably necessary for performing your obligations under this Agreement. You also agree to take all reasonable measures to protect Confidential Information against any use or disclosure that is not expressly permitted by this Agreement. You agree to not, directly or indirectly, disclose Confidential Information to any person other than your Authorized Employees, including any subcontractors, agents, or outsourcers without express written consent from Aesthetic Record, unless and to the extent expressly required by applicable law, in which case you shall notify Aesthetic Record before such disclosure or as soon as reasonably possible thereafter via email with return receipt requested to Tiphany Lopez, Chief Growth Officer, at tiphany@aestheticrecord.com, Re: Confidential Information Disclosure. Any such disclosure required by applicable law shall be limited to the minimum necessary disclosure and you must explicitly indicate the confidential nature of the shared information. You shall be responsible for and be liable to Aesthetic Record for the actions and omissions of such unauthorized third parties concerning the treatment of Confidential Information. “Authorized Employees” means your employees who have a need to know or otherwise access Confidential Information to enable you to perform your obligations under this Agreement.
3. You may not issue any press release or make any public statement related to the Marketplace, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way. You must send any request to assign to Aesthetic Record by electronic mail with return receipt requested to Tiphany Lopez, Chief Growth Officer, at tiphany@aestheticrecord.com, Re: Trademark Request.
4. Generally, you may not use personal data in any way inconsistent with applicable law or our Privacy Policy. You must keep personal data confidential at all times.
I. Termination
1. The term of this Agreement will start on the date of your completed registration for an Account and will continue until terminated by us or you as provided below. You may at any time terminate this Agreement by reaching out via email with return receipt requested to Tiphany Lopez, Chief Growth Officer, at tiphany@aestheticrecord.com, Re: User Agreement Termination, and then following the specific instructions indicated to you in our response.
2. We may terminate your use of any Services or terminate this Agreement for convenience with 30 days’ advance notice. We may suspend or terminate your use of any Services immediately if we determine that (a) you have materially breached this Agreement and failed to cure within 7 days of a cure notice unless your breach exposes us to liability toward a third party, in which case we are entitled to reduce, or waive, the aforementioned cure period at our reasonable discretion; (b) your account has been, or our controls identify that it may be used for deceptive or fraudulent, or illegal activity; or (c) your use of the Services has harmed, or may reasonably cause harm to other sellers, customers, or Aesthetic Record’s legitimate interests. We will promptly notify you of any such termination or suspension via electronic mail via to the approved business or employer-issued email address that was provided when registering for an Account or as updated from time to time, except where we have reason to believe that providing this information will hinder the investigation or prevention of deceptive, fraudulent, or illegal activity, or will enable you to circumvent our safeguards.
3. On termination of this Agreement by either party for any reason, all related rights and obligations under this Agreement immediately terminate, except that you will remain responsible for performing all of your obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination, and Sections C, D, H, I, J, K, L, M, N, O, Q, R, and T of this Agreement survive. In addition, you will not be entitled to any refunds of any Fees, pro rata or otherwise, and any liabilities will become immediately due and payable in full. Further, you will be no longer able to access your Account and your Marketplace Store website will be taken offline.
J. Modifications to Fees, Prices, and Services
1. We may modify our Fees or prices for using Services from time to time by posting the modifications on the Aesthetic Record website 14 days in advance, but with no advance notice required for temporary promotions or any modifications that result in the reduction of fees or prices.
2. Aesthetic Record reserves the right at any time, and from time to time, to modify, suspend, or discontinue, the Services (or any part thereof) with or without notice.
3. Aesthetic Record shall not be liable to you or to any third party for any modifications, fee changes, price changes, suspensions, or the discontinuance of any Service. Your continued use of the Services after any such revisions are posted to Aesthetic Record’s website constitutes your agreement to, and acceptance of any such revisions.
4. Not all Services and features are available in every jurisdiction and we are under no obligation to make all Services or features available in any jurisdiction.
K. Feedback and Other Information
1. If you elect to provide or make available suggestions, comments, ideas, improvements, or reviews of the Services; any third party provider, including but not limited providers such as ShipStation, Constant Contact, or Mail Chimp; or services provided by such third parties (collectively, “Feedback”) to Aesthetic Record, we will be free to use, disclose, reproduce, modify, license, transfer, and otherwise distribute, and exploit any of the foregoing Feedback in any manner.
2. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content. All Feedback is subject to Aesthetic Record’s Acceptable Use Policy but Aesthetic Record is under no duty to regularly inspect posted Feedback.
L. Representations
1. Each party to this Agreement represents and warrants that: (a) if it is a business, it is duly organized, validly existing and in good standing under the laws of the country in which the business is registered and that you are registering for an Account within such country; (b) it has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by one party to the other party is at all times accurate and complete; (d) it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) it will comply with all applicable laws in performance of its obligations and exercise of its rights under this Agreement.
M. Disclaimer of Warranties and General Release
1. We try to keep the Marketplace safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability; fitness for a particular purpose; non-infringement; implied warranties arising out of course of dealing, course of performance, or usage of trade; and any obligation, liability, right, claim, or remedy in tort, whether or not arising from our negligence.
2. We do not warrant that the function contained in the Marketplace and the Services will meet your requirements or be available, timely, accurate, reliable, secure, uninterrupted, or error free, and Aesthetic Record will not be liable for any service interruptions, including but not limited to system failures or other interruptions that may affect the receipt, processing, acceptance, completion, or settlement of any transactions.
3. Because Aesthetic Record is not involved in transactions or dealings between Marketplace participants, if a dispute arises between one or more participants, you release Aesthetic Record (and its agents, officers, directors, and employees) from claims, demands, and damages (actual or consequential) of every kind and nature, known and unknown, suspected, and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
N. Limitation of Liability
1. To the extent permitted by applicable law, Aesthetic Record (and its agents, officers, directors, and employees) will not be liable (whether in contract, warranty, tort (including negligence, product liability, or other theory) or otherwise) to you or any other person for cost of cover, recovery, or recoupment of any investment made by you in connection with this Agreement, or for any loss of profit, revenue, business or goodwill, use, data, or punitive or consequential damages arising out of or relating to this agreement, even if Aesthetic Record has been advised of the possibility of those costs or damages. Further, Aesthetic Record’s aggregate liability to you or any third party arising out of or in connection with this Agreement or the transactions contemplated by the Agreement will not exceed at any time the total amounts during the prior three month period paid by you to Aesthetic Record in connection with the particular Service giving rise to the claim.
O. Indemnity
1. You will defend, indemnify, and hold harmless Aesthetic Record (and its agents, officers, directors, and employees) against any third-party claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to (a) your non-compliance with applicable laws; (b) your products, including the offer, sale, fulfillment, refund, cancellation, return, or adjustments thereof, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death (to the extent the injury or death is not caused by Aesthetic Record), or property damage related thereto; (c) your taxes and duties or the collection, payment, or failure to collect or pay your taxes or duties, or the failure to meet tax registration obligations or duties; or (d) actual or alleged breach of any representations you have made.
P. Export
1. You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
Q. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND AESTHETIC RECORD HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Aesthetic Record agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Aesthetic Record (including any claim or dispute between you and a third-party agent of Aesthetic Record) that relates in any way to or arises out of this or previous versions of this Agreement, your use of or access to the Services, the actions of Aesthetic Record (and its agents, officers, directors, and employees) or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
1. Applicable law. You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Ohio, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Aesthetic Record, except as otherwise stated in this Agreement.
2. Agreement to Arbitrate. You and Aesthetic Record each agree that any and all disputes or claims that have arisen, or may arise, between you and Aesthetic Record (including any disputes or claims between you and a third-party agent of Aesthetic Record) that relate in any way to or arise out of this or previous versions of this Agreement, your use of or access to the Marketplace, the actions of Aesthetic Record (and its agents, officers, directors, and employees), or any products or services sold, offered, or purchased through the Marketplace shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
- i. Prohibition of Class and Representative Actions and Non-individualized Relief. YOU AND AESTHETIC RECORD AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND AESTHETIC AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Aesthetic Record’s right to appeal the court’s decision. All other claims will be arbitrated.
- ii. Arbitration ProceduresArbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section (i) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a letter requesting arbitration, describing the nature and basis of your claim, and the relief sought. The Notice to Aesthetic Record should be sent via certified mail to Aesthetic Record, Attn: Tiphany Lopez, Re: Arbitration Request, 40 West Gay Street, Columbus, OH 43215. Aesthetic Record will send any letter requesting arbitration to your business or employer address we have on file associated with your Account; it is your responsibility to keep your address up to date.
If you and Aesthetic Record are unable to resolve the claims described in the letter requesting arbitration within 30 days after the letter is sent, you or Aesthetic Record may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You shall also send a copy to Aesthetic Record via certified mail to the following address: Aesthetic Record, Attn: Tiphany Lopez, Re: Arbitration Request, 40 West Gay Street, Columbus, OH 43215. In the event Aesthetic Record initiates arbitration proceedings against you, it will send a copy of the completed form to the physical address we have on file associated with your Account. Any settlement offer made by you or Aesthetic Record shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Aesthetic Record may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Aesthetic Record subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Aesthetic record may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Aesthetic Record user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- iii. Costs of ArbitrationPayment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, Aesthetic Record will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Aesthetic Record should be submitted by mail to the AAA along with your Demand for Arbitration and Aesthetic Record will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Aesthetic Record for all fees associated with the arbitration paid by Aesthetic Record on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
- iv. SeverabilityWith the exception of any of the provisions in Section (i) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
- v. Future Amendments to the Agreement to ArbitrateNotwithstanding any provision in this Agreement to the contrary, you and Aesthetic Record agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Aesthetic Record prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Aesthetic Record. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on the Marketplace website located at https://armarketstg.wpengine.com. If you do not agree to these amended terms, you may close your Account within the 30-day period and you will not be bound by the amended terms.
3. Judicial Forum for Legal Disputes. Unless you and Aesthetic Record agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and Aesthetic Record must be resolved exclusively by a state or federal court located in Franklin County, Ohio. You and Aesthetic Record agree to submit to the personal jurisdiction of the courts located within Franklin County, Ohio for the purpose of litigating all such claims or disputes.
R. Offering to Buy or Sell Outside of the Marketplace
1. Contacting another Marketplace user to discuss facilitating a transaction off the Marketplace exposes both the buyer and seller to the risk of fraud. As a result, offering to buy or sell outside of Aesthetic Record, including sharing direct contact information prior to an Aesthetic Record purchase, is not allowed. You also agree to not refer to or promote external websites that facilitate sales outside of Aesthetic Record in any communications with another Marketplace user. You also agree that you will not utilize any Marketplace user information to contact another user to buy or sell off the Marketplace. You also agree to not offer catalogs or other items that are used to order items directly outside of the Marketplace. Unless otherwise agreed by the Parties in writing, all Marketplace Store Owners are subject to this clause.
S. SMS Marketing Campaign Feature
1. The Marketplace allows Account holders to enable our Standard Rate Messaging Service Marketing Campaign Feature (“SMS Feature”) that allows you send and receive SMS messages with buyers that opt-in to the SMS Feature. By enabling the SMS Feature, you agree to comply any and all mandates found in the CTIA Short Code Monitoring Handbook (“CTIA Handbook”) and the Telephone Consumer Protection Act of 1991 (“TCPA”) and any associated regulations. Copies of the CTIA Handbook and the TCPA can be found https://www.wmcglobal.com/storage/us_resources/ctia-short-code-monitoring-handbook-current-Short-Code-Monitoring-Handbook-v1.7.pdf and https://www.fcc.gov/sites/default/files/tcpa-rules.pdf
2. You agree that you will not send Unsolicited Messages via the SMS Feature. Unsolicited Messages are defined as either a) messages delivered without prior express consent from the customer or b) messages sent after a customer has opted out except for a single opt-out message acknowledging the customer’s opt-out.
3. You agree that all messages you send to customers will conform to Aesthetic Record’s Acceptable Use Policy. You also agree the messages will not be deceptive and will remain clear and consistent throughout the user experience.
4. All messages sent by utilizing the SMS Feature must be delivered to a customer’s mobile device only after the customer has affirmatively opted-in to receive such messages through a clear and conspicuous call-to-action. Requiring a customer to enter a mobile phone number does not constitute a compliant opt-in. Instead, customers must understand they will receive messages and expressly consent to receive such messages. Enrolling a customer in multiple short code programs via the SMS Feature is prohibited, even when all programs operate on the same short code.
5. You will send a single opt-in confirmation message that displays information verifying the customer’s enrollment in the SMS Feature immediately after the customer opts-in to the program.
6. All opt-in messages utilized in the SMS Feature must contain the following:
- i. Product DescriptionA brief summary of what kinds of messages customers will be receiving. For example, “Enter your phone number here to sign up for text messages about our specials!”
- ii. Fee Disclosure.For customers residing in the United States, the fee disclosure must state “Message and data rates may apply.” For customers residing in Canada, the fee disclosure must state “Standard message and data rates may apply.”
- iii. Message Frequency Disclosure. You must disclose how often the customer will receiving messages, which can be discrete (e.g., “1 message per day”) or general (e.g., “Message frequency varies depending on activity”).
- iv. Link to Privacy Policy. You must maintain your own privacy policy and make it accessible via clearly-labeled link contained in the initial opt-in message.
- v. Customer Care Contact Information. Customer care contact information must be clear and readily available to help customers understand program details as well as their status with the program. You must always respond to customer care requests. At a minimum, the HELP keyword must return your program name and further information about how to contact you. Such contact information can include a support email address, phone number, or a web page address. You must also display customer care contact information at regular intervals in content or service messages, which at a minimum must occur at least once every thirty days. Aesthetic Record, in its sole discretion, may assist you in managing the HELP keyword.
- vi. Opt-out Information. As discussed in Subsection 7 of the SMS Marketing Campaign Feature Section of this Agreement, all opt-in messages must also display opt-out instructions.
7. A functioning opt-out mechanism is required when utilizing the SMS Feature and you must always acknowledge and respect customers’ requests to opt out of your program. At a minimum, your program must respond to the universal keywords STOP, END, CANCEL, UNSUBSCRIBE, and QUIT. Subsequent text, punctuation, capitalization, or some combination thereof must not interfere with opt-out keyword functionality. You must also display opt-out instructions at regular intervals in content or service messages, which at a minimum must occur at least once every thirty days. You may deliver one final message to confirm a customer has opted out successfully. Aesthetic Record, in its sole discretion, may assist you in removing customers who opt-out from the SMS Feature.
8. You agree to incorporate the requirements of Subsections 1 through 7 of the SMS Marketing Campaign Feature Section of this Agreement into your mobile terms and conditions and/or user agreement that must be approved by any customers before you can utilize the SMS Feature to send messages to such customers.
9. In the event that Aesthetic Record, in its sole discretion, determines that you have failed to comply with any of the terms and conditions in the SMS Marketing Campaign Feature Section of this Agreement, you agree to the following course of action:
- i. For a first violation, Aesthetic Record will notify you of the violation by posting such notice to your Marketplace Dashboard. Additionally, we will notify you through email to your business or employer email address associated with your Account. We will also immediately suspend your ability to participate in the SMS Feature for up to 30 days from the day we provided notice to you (“Notice Date”). You will also have 30 days from the Notice Date to provide Aesthetic Record with proof of correction, which can, in our sole discretion, include but not be limited to items such as screenshots, documents, and process improvement plans. Upon receipt of all required proof of correction documentation, Aesthetic Record will then render a decision within 14 days regarding the reinstatement of the SMS Feature to your Account. If you cannot demonstrate the required corrective action was completed within the 30-day period after your Notice Date, Aesthetic Record, in its sole discretion, may permanently exclude you from using the SMS Feature.
- ii. For a second violation, Aesthetic Record will notify you of the violation by posting such notice to your Marketplace Dashboard. Additionally, we will notify you through email to your business or employer email address associated with your Account. We will also immediately suspend your ability to participate in the SMS Feature and permanently exclude you from using the SMS Feature.
T. General Conditions
1. Aesthetic Record may provide technical support from staff experienced in the Marketplace by email request to info@aestheticrecord.com in response to requests for assistance in understanding and use of the Marketplace.
2. To the extent permitted by applicable law, we reserve the right to refuse service to anyone for any reason at any time.
3. You acknowledge and agree that the relationship with Aesthetic Record is non-exclusive and Aesthetic Record may perform services for and contract with as many additional customers, persons, or entities in any market segment in Aesthetic Record’s sole discretion as it sees fit.
4. You agree to not purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use Aesthetic Record or Aesthetic Record trademarks and/or variations and misspellings thereof.
5. This Agreement may be available in languages other than English. To the extent any inconsistencies or conflicts arise between the English version of this Agreement and another version of Agreement available in a different language, the most current English version of the Agreement at https://www.aestheticrecord.com/legal/terms will prevail.
6. In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business registration, government-issued photo ID, the last four digits of the credit card on file, the last four digits of the bank account number on file, paperwork confirming your status as an authorized employee of an entity, etc. Aesthetic Record retains the right, in our sole discretion, to determine rightful Account ownership and the ability transfer an Account to the rightful Marketplace Store Owner. If we are unable to reasonably determine the rightful Marketplace Store Owner, without prejudice to our other rights and remedies, Aesthetic Record reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
7. Except as otherwise provided in this Agreement, if any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
8. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties to the Agreement and to their respective heirs, successors, permitted assigns and legal representatives. In our sole discretion, we may assign this Agreement, and in such an event, we will post notice on your Marketplace Dashboard. You shall have no right to assign or otherwise transfer the Agreement, or any of your rights or obligations hereunder, including but not limited to the transfer of any Account, to any third party without Aesthetic Record’s prior written consent which is to be given or withheld in Aesthetic Record’s sole discretion. You must send any request to assign to Aesthetic Record by certified mail to the following address: Aesthetic Record, Attn: Tiphany Lopez, Re: Assignment Request, 40 West Gay Street, Columbus, OH 43215.
9. You and Aesthetic Record are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on Aesthetic Record’s behalf. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement.
10. Headings are for reference purposes only and do not limit the scope or extent of each Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
11. You acknowledge and agree that Aesthetic Record may amend this Agreement at any time by posting the relevant amended and restated Agreement on your Marketplace Dashboard. Our right to amend this Agreement includes the right to modify, add to, or remove terms in the Agreement. We will provide you 14 days’ notice by posting the amended terms. Additionally, we will notify you through email to your business or employer email address associated with your Account. However, we may change or modify the Agreement at any time with immediate effect (a) for legal, regulatory, fraud, and abuse prevention or for security reasons or to (b) to restrict products or activities that we deem unsafe, inappropriate, or offensive. Your continued use of the Services after the amended Agreement is posted to Aesthetic Record website constitutes your agreement to, and acceptance of, the Agreement. We may also ask you to acknowledge your acceptance of the Agreement through electronic click-through. This Agreement may not otherwise be amended except through mutual agreement by you and Aesthetic Record representative who intends to amend this Agreement and is duly authorized to agree to such an amendment.
12. You acknowledge and agree that Aesthetic Record may amend the policies referenced in this document, at any time with immediate effect by posting the relevant amended and restated policy on your Marketplace Dashboard. Additionally, we will notify you through email to your business or employer email address associated with your Account. Your continued use of the Services after the amended policy is posted to Aesthetic Record’s website constitutes your agreement to, and acceptance of, the amended policy. We may also ask you to acknowledge your acceptance of the amended policy through electronic click-through.
13. We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.
14. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
15. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
