Terms of Use Agreement

Effective Date: April 26, 2021

WELCOME TO UPGRADE SALON, A MARKETPLACE PLATFORM DESIGNED TO ALLOW CUSTOMERS (“CUSTOMERS”) TO PURCHASE [HAIR] (“PRODUCTS”) AND TO REQUEST STYLING SERVICES (“STYLIST SERVICES”) IN CONNECTION WITH SUCH PRODUCTS FROM STYLISTS (“STYLISTS”).

PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”), AND Upgrade Salon, INC. (“Upgrade salon,” “WE,” OR “US”). SECTION 15 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 15 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

BY ACCESSING OR USING upgradeboutique.com, OR ANY OTHER WEBSITE WITH AN AUTHORIZED LINK TO THIS AGREEMENT (“WEBSITE”), REGISTERING AN ACCOUNT, MAKING ANY PURCHASES, OR ACCESSING OR USING ANY CONTENT, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (COLLECTIVELY, THE “SERVICES”), OR CLICKING ON A BUTTON OR TAKING ANOTHER ACTION TO SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (1) AGREE TO BE BOUND BY THIS AGREEMENT AND ANY FUTURE AMENDMENTS AND ADDITIONS TO THIS AGREEMENT AS PUBLISHED THROUGH THE SERVICES; (2) REPRESENT YOU ARE OF LEGAL AGE IN YOUR JURISDICTION OF RESIDENCE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY AND, IF APPLICABLE, ON BEHALF OF ANY COMPANY, ORGANIZATION OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU USE THE SERVICES.  UNLESS OTHERWISE SPECIFIED, “YOU” REFERS TO BOTH CUSTOMERS AND SYLISTS. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.

PLEASE NOTE THAT The Terms are subject to change by UPGRADE SALON in its sole discretion at any time. When changes are made, Upgrade Salon will make a new copy of the Agreement available at the Website, and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of the Agreement. If we make material changes to the Agreement, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account (as defined in Section 1) or another manner through the Services (which may include posting an announcement on our Website). Upgrade Salon may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you agree to stop using the Website and the Services. Otherwise, your continued use of the Website or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. Registration. In order to access certain features of the Services, you may be required to register for an account for the Services (“Account”). When registering for an Account, you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Upgrade Salon immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same Upgrade Salon service at any given time. Upgrade Salon reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Upgrade Salon.
2. Terms for Customers The terms of this Section 2 apply to the extent you use the services as a purchaser of products and services.
   1. Product Order Process.

   
   (a) Order Acceptance.  Each part of any order that you submit to Upgrade Salon constitutes an offer to purchase. If you do not receive a message from Upgrade Salon confirming receipt of your order, please contact our Customer Service department at info@upgradeboutique.com before re-entering your order. Upgrade Salon’s confirmation of receipt of your order does not constitute Upgrade Salon's acceptance of your order. Upgrade Salon is only deemed to have accepted your order once the Product(s) you ordered have been shipped.
   
   (b) Order Issues.  Although we strive to accept all valid orders, Upgrade Salon reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute. 
   
   (c) Return Policy. Any request to return Products shall be made in accordance with our return policy found here: https://upgradeboutique.com/returns. We do not accept any returns or exchanges for any Products that have been customized by Stylists. All fees paid for Products and/or Styling Services are non-refundable.
   
   (d) Order Cancellation.  If any Product is discontinued or otherwise becomes unavailable, Upgrade Salon reserves the right to cancel your order and provide you a refund for the amount paid for the Product.
   
   (e) Restrictions on Resale. To protect the intellectual property rights of Upgrade Salon and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. Upgrade Salon reserves the right to decline any order that we deem to possess characteristics of reselling.
   
   (f) Third-Party Provider. Upgrade Salon uses a third-party service provider for fulfilling orders. By ordering any Product through the Services, you acknowledge that Upgrade Salon has no responsibility or liability for any delays that may result from orders handled by such third-party service provider.

   2. Styling Service Order Process.

   
   (a) Stylist Services Request.  Stylist Services Request. In connection with Customer’s purchase of the Products, Customer may request Stylist Services for the Product (a “Request”). Stylist may accept or reject a request. If the Stylist accepts a Request, Upgrade Salon will ship the Product to the Stylist providing the Stylist Services. Once Upgrade Salon has shipped the Product to the Stylist, Upgrade Salon shall have no further liability related to Products, and any issues related to the Products shall be directed to the Stylists. If the Stylist rejects or does not timely respond to a Request, Upgrade Salon will notify you to select (a) an alternative Stylist or (b) the option to have the Product sent to you without Stylist Services.
   
   (b) Relationship with Stylists.
   
   (I) Any Request for Stylist Services in connection with Customer’s purchase of the Products shall be rejected or accepted, and if accepted, fulfilled and performed by the Stylist you selected, in its sole discretion. You agree that Upgrade Salon is not responsible for the performance of the Stylist Services, nor does it have control over the quality, failure to provide, or any other aspect whatsoever of Stylist Services. Upgrade Salon makes no warranties or representations about the quality, suitability, reliability, timeliness, or accuracy of the Stylist Services requested.
   
   (II) STYLIST IS AN INDEPENDENT CONTRACTOR OF UPGRADE SALON AND NOT AN EMPLOYEE, PARTNER, REPRESENTATIVE, AGENT, JOINT VENTURER OR FRANCHISEE OF UPGRADE SALON. UPGRADE SALON IS ONLY OFFERING A PLATFORM FOR CONNECTING CUSTOMERS AND STYLISTS, AND UPGRADE SALON DOES NOT (1) PROVIDE STYLIST SERVICES DIRECTLY TO CUSTOMERS, (2) EMPLOY INDIVIDUALS TO PROVIDE STYLIST SERVICES. YOU HEREBY ACKNOWLEDGE THAT UPGRADE SALON DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A STYLIST’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE STYLIST SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.

   3. Fees and Purchase Terms.

   
   (a) Payment.  You agree to pay for all orders made from your Account in accordance with the prices and billing terms in effect at the time an order is made from your Account. You also agree to pay all applicable taxes. To make an order through the Services, you must provide valid payment information, such as a credit card (Visa, MasterCard or any other issuer accepted by us) or PayPal account. By providing your payment information, you agree that Upgrade Salon is authorized to immediately invoice your Account for all fees and charges due and payable to Upgrade Salon hereunder and that no additional notice or consent is required. You agree to immediately notify Upgrade Salon of any change in your billing address, debit card, credit card, or PayPal account used for payment hereunder. Upgrade Salon uses Shopify as a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By using the Services, you hereby consent and authorize Upgrade Salon to share any information and payment instructions you provide to complete your transactions. You agree to immediately notify Upgrade Salon of any change in your payment information by sending an email to info@upgradeboutique.com / updating your information in your Account. Upgrade Salon reserves the right at any time to change its prices and billing methods. Please contact info@upgradeboutique.com regarding any billing disputes.
   
   (b) Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Upgrade Salon communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
   
   (c) Affirm. Rates from 0-30% APR. For example, an $800 purchase might cost $73/mo over 12 months at 15% APR. Payment options through Affirm are subject to an eligibility check, may not be available in all states, and are provided by these lending partners: affirm.com/lenders. Options depend on your purchase amount, and a down payment may be required. CA residents: Loans by Affirm Loan Services, LLC are made or arranged pursuant to a California Finance Lenders Law license.

3. Terms FOR STYLISTS. The provisions of this Section 3 apply to the extent you use the Services as a Stylist:
   1. Overview of Service. In order to use the Services, you must have an Account and provide certain profile information, including name, location, styling fees, biographical information and images/content to be displayed on your profile. Customers may submit a Request for Stylist Services to you, and you may choose to fulfill such requests through the Services.
   2. Relationship with Upgrade Salon. In order to use the Services, you must have an Account and provide certain profile information, including name, location, styling fees, biographical information and images/content to be displayed on your profile. Customers may submit a Request for Stylist Services to you, and you may choose to fulfill such requests through the Services.

   
   (a)   You acknowledge that you maintain an independent business providing hair styling services. You wish to concentrate on practicing your profession instead of spending valuable time and money creating marketing tools, a client-base system, and a payment processing system. You understand that you are solely responsible for your own tools, equipment, training, office space, licensing, and other materials or requirements needed, desired or related to the Stylist Services.
   
   (b) You are an independent contractor and not a partner, joint venturer, agent or employee of Upgrade Salon and you will not bind nor attempt to bind Upgrade Salon to any contract. You are not eligible to participate in any of Upgrade Salon’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. You are solely responsible for the payment of insurance premiums, licensing fees, certifications, professional dues or other costs or expenses connected to your business, and acknowledge that Upgrade Salon will not reimburse you for any such expenses.
   
   (c) As an independent business and client of Upgrade Salon, you maintain complete control over your use of Upgrade Salon’s marketplace platform, including:
   
   (I) You decide whether to accept, reject, or ignore offers to perform Stylist Services;
   
   (II) You are permitted to select your attire for the Stylist Services – no uniforms or other specific clothes are required;
   
   (III) You confer with the Customer to determine the time and location of the Stylist Services – Upgrade Salon is not involved;
   
   (IV) You are permitted to maintain your independent business and other clients without using this platform;
   
   (V) You are not restricted from using competitive services or technology platforms;
   
   (VI) You retain the right to hire employees or subcontractors in performing Stylist Services, and acknowledge that these employees or subcontractors will possess the credentials, training, experience, skill and ability to provide Stylist Services;
   
   (VII) Your opportunity for profit or loss is dependent on your own managerial skill;
   
   (VIII) You solely control the amount of your investment in the Stylist Services, including expenses on training and tools; and
   
   (IX) You exclusively control your performance of the Stylist Services, including, but not limited to, possessing the requisite skills, credentials and training to perform Stylist Services that you accept hereunder.

   3. Requests; Stylist Services. You must indicate in your Account whether you are available to accept Requests for Styling Services. If you indicate you are available, any requests from Customer for Styling Services shall be deemed accepted. You may decline a Request in your sole discretion by switching your Account to individuate you are not available. You have the right to set your own price for Stylist Services, and may adjust such fee at any time by changing the information in your Account. All Stylist Services shall be completed, including shipment of stylized Product, within a maximum of thirty (30) days from Stylists’ receipt of the Product from Upgrade Salon and include at minimum one correction service. Upgrade Salon retains the right, in its sole discretion, to cancel any request from a Customer. We reserve the right to remove your profile and terminate your Account at any time for any reason.
   4. Payment. Stylist must register an account with a third-party payment provider selected by Upgrade Salon (“Payment Provider”). Upgrade Salon’s current Payment Provider is Stripe. This Payment Provider may charge you additional fees when processing payments, and Upgrade Salon is not responsible for any such fees and disclaims all liability in this regard. You agree to provide Payment Provider with all information require to facilitate the payments. If you do not provide all required information to the Payment Provider, then you may not be able to receive payments due to you. Upgrade Salon will not be responsible for any damages, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive the payments as a result of your failure to provide such information to the Payment Provider. All payment provider services are provided by the Payment Provider, and subject to the Payment Provider’s terms and conditions. Upgrade Salon reserves the right to switch Payment Providers or use alternate or backup vendors in its discretion. Upgrade Salon may delay or cancel any payment for purposes of preventing unlawful activity or fraud, risk assessment, security, or investigation. Upgrade Salon shall have no liability to you for any failure, damage, or liability caused by a Payment Provider. All payments for Styling Services shall be paid to Stylists following completion of the Styling Services once the Products are shipped to the Customer.
   5. Indemnification. In addition to those obligations under Section 9, Stylist agrees to indemnify and hold Upgrade Salon, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Upgrade Salon Indemnitees”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any claims concerning your Stylist Services.
   6. Damaged Products. If Stylist damages any Products in the performance of Stylist Services, such Stylist will be responsible for the cost of replacing such Product. Stylist hereby grants Upgrade Salon the right to immediately invoice your Account for any costs and fees associated with replacing such Product for Customer. Stylist reserves the right to off-set any replacement fees against incoming fees from Customers to Stylist for Stylist Services.
4. User Content. 
   1. Responsible Party for Content. ou acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services (“User Content”). Upgrade Salon has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Upgrade Salon reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Upgrade Salon shall have the right to remove any content that violates this Agreement or is otherwise objectionable to Upgrade Salon.
   2. Ownership of Your Content. Upgrade Salon does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Upgrade Salon the license set forth below in Section 4.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
   3. License to Your Content. Subject to any applicable Account settings that you select, you grant Upgrade Salon a right to use and display Your Content (in whole or in part) for its own business purposes, including without limitation, to operate and improve the Services, analyze Users’ use of the Services, and develop new products and services. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
   4. Other Restrictions on User Conduct.  You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Upgrade Salon’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Upgrade Salon. You may not send any unsolicited e-mail message, commercial or non-commercial, to any e-mail address you have gathered from the Services.
5. Feedback.   You agree that your submission of any ideas, suggestions, documents, and/or proposals to Upgrade Salon (“Feedback”) is at your own risk and that Upgrade Salon has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Upgrade Salon the right to use any Feedback in any way at any time without any additional approval or compensation.
6. Ownership of and License to Use Services.
   1. Use of the Services. xcept with respect to User Content, Upgrade Salon and its suppliers own all rights, title and interest in the Website, and all content therein. The Website, and all content therein, is protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Upgrade Salon grants you a limited license to access the Website and use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Website or Services shall be subject to this Agreement. Upgrade Salon, its suppliers and service providers reserve all rights not granted in this Agreement.
   2. Trademarks. Upgrade Salon’s stylized name and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of Upgrade Salon and may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. 
7. Restrictions on Use of Services.  he rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, logo or Services (including images, text, page layout or form) of Upgrade Salon; (c) you shall not use any metatags or other “hidden text” using Upgrade Salon's name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by Upgrade Salon pursuant to this Agreement.
8. Third-Party Services. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Upgrade Salon does not control and is not responsible for Third-Party Links. Upgrade Salon provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk. When you leave the Services, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Links, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. Indemnification. You agree to indemnify and hold the Upgrade Salon Indemnitees harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. This provision does not require you to indemnify any of the Upgrade Salon Indemnitees for any unconscionable commercial practice by such party or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
   1. Indemnification Procedures. Upgrade Salon reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Upgrade Salon in asserting any available defenses.
10. Disclaimer of Warranties and Conditions.
    1. AS IS YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE UPGRADE SALON INDEMNITEES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM THE PRODUCTS AND SERVICES.
    2. PRODUCTS. Descriptions, images, references, features, content, specifications, products, prices, and availability of any Products are subject to change without notice. our current prices can be found on the SERVICES. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products on the SERVICES at a particular time does not imply or warrant that these Products will be available at any time.
    3. No Liability for Conduct of Third Parties or Products. YOU ACKNOWLEDGE AND AGREE THAT THE Upgrade Salon Indemnitees ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Upgrade Salon Indemnitees LIABLE, FOR THE CONDUCT OF THIRD-PARTIES OR ANY PRODUCTS OR SERVICES THAT THEY MAY PROVIDE, INCLUDING OPERATORS OF EXTERNAL SITES AND STYLISTS, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTIES, SERVICES AND/OR PRODUCTS RESTS ENTIRELY WITH YOU.
    4. No Liability for Conduct of Other Users OR THIRD-PARTIES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF the Services, INcluding any STYLISTS OFFERING SERVICES THROUGH the services. YOU UNDERSTAND THAT UPGRADE SALON DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS or other third-parties made AVAILAble through the SERVICES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11. Limitation of Liability.
    1. Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE UPGRADE SALON INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT UPGRADE SALON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. Disclaimer of Third Party Conduct. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE UPGRADE SALON INDEMNITEES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
    3. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE UPGRADE SALON INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO UPGRADE SALON BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).
    4. User Content and Settings. THE UPGRADE SALON INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
    5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UPGRADE SALON AND YOU.
    6. Exclusions THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
12. Procedure for Making Claims of Copyright Infringement. If you believe content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: Corporation Service Company, 211 E.7th Street, Suite 620, Austin, TX 78701.
13. Termination. At its sole discretion, Upgrade Salon may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Upgrade Salon reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Upgrade Salon for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 2.2(a), 5-11, and 13-16.
14. International Users. The Services are controlled and offered by Upgrade Salon from its facilities in the United States of America. Upgrade Salon makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law
15. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully.  It requires users to arbitrate disputes with Upgrade Salon and limits the manner in which you can seek relief from us.
    1. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Upgrade Salon, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify,; and (b) you or Upgrade Salon may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
    2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Corporation Service Company, 211 E.7th Street, Suite 620, Austin, TX 78701. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.  Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Upgrade Salon will pay them for you. In addition, Upgrade Salon will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
       
       You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
    3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Upgrade Salon. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.
    4. Waiver of Jury Trial. award of the arbitrator is final and binding upon you and us. Waiver of Jury Trial.  YOU AND UPGRADE SALON HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Upgrade Salon are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Application of Arbitration Agreement) above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
    5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Texas. All other disputes, claims, or requests for relief shall be arbitrated.
    6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: info@upgradeboutique.com , within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Upgrade Salon username (if any), the email address you used to set up your Upgrade Salon account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
    7. Severability. Except as provided in Section 15.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
    8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Upgrade Salon.
    9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Upgrade Salon makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Upgrade Salon at the following address: Upgrade Salon P.O. Box 20826 Houston, TX 77225.
16. General Provisions.
    1. Electronic Communications. The communications between you and Upgrade Salon use electronic means, whether you visit the Services or send Upgrade Salon e-mails, or whether Upgrade Salon posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Upgrade Salon in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Upgrade Salon provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
    2. Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Upgrade Salon’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    3. Force Majeure. Upgrade Salon shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    4. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact our customer service department using the contact information available on the Services. We will do our best to address your concerns. 
    5. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Upgrade Salon agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 15.1 will be litigated exclusively in the state and federal courts located in Houston, Texas.
    6. Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF TEXAS, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
    7. Notice. Where Upgrade Salon requires that you provide an e-mail address, you are responsible for providing Upgrade Salon with your most current e-mail address. In the event that the last e-mail address you provided to Upgrade Salon is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Upgrade Salon’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Upgrade Salon at the following address: Upgrade Salon Inc., Upgrade Salon P.O. Box 20826 Houston, TX 77225. . Such notice shall be deemed given when received by Upgrade Salon by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    8. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    9. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    10. Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.
    11. Consumer Complaints. In accordance with California Civil 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
    12. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.