Merchandise & Training Program Agreement/Terms and Conditions
Last Updated: April 8th, 2021
Thank you for choosing Lavish Lashes®!
By purchasing and/or using Lavish Lashes® Products and Services, you agree to this Merchandise Agreement/Terms and Conditions. Please read them carefully. This Merchandise Agreement/Terms and Conditions cover the following:
(1) Use of Merchandise; (2) Training and Certification; (3) Intellectual Property, Confidentiality and Non-Compete Terms; (4) Limitation of Liability; (5) General Provisions for the Agreement; and Addendum A: Use of Marketing Program.
Lavish Lashes® reserves the right to modify these terms and conditions at any time.
This document comprises a legal agreement (the “Merchandise Agreement”) between Lavish Lashes® (“us”, “our”, or “Lavish Lashes”) and any customer of Lavish Lashes® (“you”, “your”, or “Customer”).
This Merchandise Agreement must be read, signed or electronically consented to by you in order to receive the Lavish Lashes® merchandise you are purchasing herewith (the “Merchandise”) and before participation in any Lavish Lashes® training course.
Additionally, in order to minimize the risk of the unauthorized use of your credit card, it will be requested by Lavish Lashes® that you submit a Credit Card Authorization Form when certain conditions apply, including, but not limited to, situations such as: (1) when the shipping address is different from the billing address; (2) when the name and identity of the student taking the Lavish Lashes® training class is different from that of the credit card holder paying for Lavish Lashes® products and services; (3) for new international orders; or (4) for large, rush orders.
As it is the policy for Lavish Lashes® to allow use of the Merchandise to only licensed and/or certified professionals within the beauty, medical or dental industries, please fax back this Merchandise Agreement along with a copy of your license or industry credentials to (951) 848-9349. For online purchases, please fax a copy of your license or industry credentials to (951) 848-9349 once you have consented to our online Merchandise Agreement, if you have not already signed a paper copy.
Pricing for classes is for customers offering the eyelash extension services in North America. Any orders placed by individuals intending to provide the services or do business outside of North America using Lavish Lashes products (the “Merchandise”), methods (the “System”), or marketing and training materials, trade name, logo and copyrighted material (the “Brand”) are subject to approval by Lavish Lashes®.
For questions, please call us at (951) 977-9911, Monday-Friday 9:00 AM-5:00 PM (Pacific Standard Time).
(1) USE OF MERCHANDISE
Please thoroughly review the following in regards to your purchase of Merchandise. This section covers discontinuation of Merchandise, risk of loss with shipment, product descriptions, returns and exchanges and liability that Lavish Lashes has with the Merchandise it sells.
RIGHT TO DISCONTINUE AND SUBSTITUTE MERCHANDISE Lavish Lashes® reserves the right to discontinue and substitute any product contained in our kits or within our product line without prior notification.
RISK OF LOSS All items purchased from Lavish Lashes® are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
PRODUCT DESCRIPTIONS Lavish Lashes® attempts to be as accurate as possible. However, Lavish Lashes® does not warrant that product descriptions or other content of any Lavish Lashes® Service is accurate, complete, reliable, current or error-free. If a product offered by Lavish Lashes® itself is not as described, your sole remedy is to return it in unused condition.
RETURNS/EXCHANGES For hygienic and quality control reasons, only unopened and sealed product (excluding adhesives) returned with a Return Authorization Number (RA#) within twenty-one (21) days of receipt will be accepted for a refund of the price you paid less a twenty-five percent (25%) restocking fee and shipping charges.
PRODUCT CREDITS Product credits issued to any Customer will expire twelve (12) months from the date of issuance.
ADHESIVE PURCHASES Lavish Lashes® is proud to provide the most reliable, quality lash adhesives available. Should you receive adhesive that does not appear to be performing to your expectations, please contact our office immediately and within twenty-one (21) days of receipt for assistance.
As there are several factors that affect how long lash extensions appear to adhere or “last,” Lavish Lashes® will consult with you to determine what factors may be contributing to your observations. Returns and exchanges will not be considered except for claim of defect when we are contacted within twenty-one (21) days of receipt of adhesive(s). When purchasing Lavish Lashes® adhesives, you acknowledge that the adhesive’s performance may be compromised in shipment due to over exposure to extreme weather conditions/temperature and it is Lavish Lashes® policy to ship adhesives in protective packaging Monday-Thursday to avoid accidental over exposure. Should you have reason to believe your product to be defective you may be entitled to receive a refund or exchange at the sole discretion of Lavish Lashes®.
KIT PURCHASES Only unopened and sealed items contained within a Kit will be considered for a return if all items are returned within twenty-one (21) days of receipt AND prior to your scheduled training course date. If a Kit is returned within twenty-one (21) days of purchase AND prior to your scheduled training course date, then the refund will be calculated by subtracting the following from the original Kit price paid: (1) the restocking fee of twenty-five percent (25%) of the total Kit price; (2) the retail value of used, unsealed or missing items, including without limitation, any adhesive, any containers of lashes, any marketing and instructional materials; and (3) the shipping charge.
Returns must be shipped back at your cost and enclosed with: (1) a Return Authorization Number on the outside of the return packaging (2) written request with your information; (3) a reason for the return; and 4) a list of any items missing, damaged, and/or opened/unsealed. Failure to follow the steps outlined here may result in your request not being processed.
Return shipments must be addressed to:
Lavish Lashes®, Attn: Customer Service, 34266 US Hwy 19 N Palm Harbor, FL 34684.
Once received, please allow for up to fourteen (14) days for return processing.
Please see the Force Majeure clause in Section 5 of this Agreement for further details on our policies and their limitations.
FOR PROFESSIONAL USE ONLY Lavish Lashes Merchandise and training materials are only for use in accordance with the laws of your state: (1) by schools that hire Lavish Lashes® to provide training services at their schools, for purchase and use by students at the schools in a Lavish Lashes® training course; (2) by any student for use in a Lavish Lashes® training course to become certified by Lavish Lashes® (as a “Certified Lavish Lashes® Specialist”) in the Lavish Lashes® eyelash extension technique (the “System”); (3) by approved beauty professionals; and (4) by Certified Lavish Lashes® Specialists in “Good Standing” (as defined below) in performing the System on members of the public. The above shall constitute the “Allowed Uses” of the Merchandise.
Lavish Lashes® Eyelash Extension Merchandise, is not intended, nor should it be used at any time, for self-application.
LICENSES State licensing requirements for the application of lash extensions vary, so it is incumbent upon you to research the requirements for your state, and comply with any laws and requirements concerning the application of any lash extension products.
Whereas certain states do not require a license to practice certain beauty or body treatment disciplines (such as permanent make-up artistry), Lavish Lashes® may require that such individuals provide proof of formal certificate training or acceptable credentials within the beauty, medical or dental fields as a pre-requisite to any Lavish Lashes® Eyelash Extension training and/or certification. If requested, you hereby agree to submit a copy of your professional license and/or certificate to Lavish Lashes® at the time of purchase of any Merchandise to fax number (951) 848-9349. You further agree to present the professional license and photo ID, as applicable, if requested by a Lavish Lashes® trainer at your scheduled training location.
CLIENT IN-TAKE/CONSENT FORM USE REQUIREMENT As a condition of your acceptance of the Merchandise, you agree that you will not perform the System on any person (including removing any eyelash extensions already worn by any individual) without first having such person sign and date a standard Lavish Lashes® Client In-Take/Consent Form whereby the client is made aware of the risks of the procedure, consents to the procedure, and the use of before and after photographs of his/her eyes.
ACKNOWLEDGEMENT OF RISKS
(a) Lavish Lashes ® Eyelash Extensions You recognize that the System of applying eyelash extensions can never be 100% safe. Accidental injury to the eye or the premature loss of an individual’s natural eyelashes may occur. Appropriate precautions must be taken to safeguard the well-being of your future clients. You agree to perform the System in a safe manner and to take all measures of precaution such as, but not limited to: (1) The proper bonding of weight appropriate eyelash extension to the base of the natural eyelash; (2) requiring that contact lenses be removed for any given part of the procedure; (3) completely covering the lower lashes on those individuals for whom you perform eyelash extensions to protect the lower lashes from bonding to the upper lashes; (4) covering and protecting the upper eyelids so that they remain closed for the duration of the procedure; (5) thoroughly consulting with the client to identify contraindications and ensure client is a good candidate for the System; (6) receive the client’s signed informed consent; (7) using the eye irrigation solution for each client upon removal of any eyelash extensions; and as necessary (8) providing an aseptic procedure. As a condition of your use of the Eyelash Extensions, you acknowledge and accept the inherent risks associated with applying eyelash extensions and agree to comply with the Lavish Lashes® safety standards herein.
GOOD STANDING REQUIREMENT If you remain in Good Standing (as set forth herein), you will be able to use the Merchandise for the Allowed Uses. To be clear, if you cease at any time for any reason to remain in Good Standing (as defined below), any use of the Merchandise, the Intellectual Property (defined below), and/or the Marketing Program (defined in Addendum A) shall be a material breach of this Agreement. You will be considered in “Good Standing” so long as you comply with all the terms and obligations set out in this Merchandise Agreement and any other agreement you enter into with Lavish Lashes®.
Without limiting the generality of the foregoing, to help ensure the value of your certification, for client safety, and to protect the reputation of the “Brand” (defined as the consumer experience known as Lavish Lashes® and the name, trademarks, service marks, trade dress, logo, slogan, and products of Lavish Lashes), you shall not have Good Standing status if you at any time:
(1) Provide substandard applications of eyelash extensions;
(2) Apply lash extensions or remove lash extension in a manner that is perceived to be unsafe;
(3) Offer to perform the System at substantially substandard prices for the market area (without limiting the generality of the foregoing, the fair market charge for the eyelash extension System in most cities should be no less than $100 per hour);
(4) Violate any duty of confidentiality owed to Lavish Lashes® under any existing or future agreements;
(5) Attempt to train another individual on the System without being certified as a trainer by Lavish Lashes®;
(6) Do anything that would compromise client safety or the reputation of the Brand;
(7) Fail to comply with the requirements for using the “Marketing Program” (defined in Addendum A);
(8) Fail to use the “Products and Services” (defined as the goods and services sold, made, and/or distributed by Lavish Lashes® under the Brand, including, but not limited to the Merchandise and the System.) exclusively; or
(9) Fail to remain “Active” by not regularly performing the System (Lash applications) to maintain your skill set and not regularly purchasing Lavish Lashes® eyelash extension core products (noting that the shelf life of the Products is approximately ninety (90) days). Without limitation, you shall not have Active status if additional Products are not reordered every one hundred twenty (120) days. This requirement can easily be satisfied by purchasing Lavish Lashes® adhesives, extensions adhesives, extensions, which are critical parts of the Lavish Lashes® System. Merchandise reorder requirements are based on the amount of Lavish Lashes® and product used by a Customer performing between five (5) and eight (8) hours of lash and extension applications per week.
Lavish Lashes® reserves the right within its sole discretion to address its concerns and gain or regain your compliance with this Merchandise Agreement, either through verbal agreement, written agreement, or re-testing.
If you are unable or unwilling to comply to this Merchandise Agreement, Lavish Lashes® reserves the right to no longer recognize your Lavish Lashes certification as valid and/or prohibit your use of any Lavish Lashes Products and Services, including your use of the Marketing Program (defined in Addendum A), if applicable. Lavish Lashes also reserves the right to seek legal remedy for any material breach of this Merchandise Agreement.
(2) TRAINING AND CERTIFICATION
CONDITIONS FOR CERTIFICATION / RIGHT TO DECERTIFY AND PROHIBIT BUYER’S USE Our motivation for requiring certification is that we desire for our customers to be successful with our products. For general public safety, and to protect the reputation of the Brand, Lavish Lashes® does not guaranty certification and maintains the right to “decertify,” or no longer recognize a certificate as being valid. Lavish Lashes may prohibit use of its products, brand, logo, marketing materials, images, all forms of training materials and intellectual property by those individuals that Lavish Lashes® determines may cause harm to either individuals or the Brand. It is the sole responsibility of the student to meet any and all requirements to perform the procedure safely and to gain and develop your own competence and skill. Attendance alone at a Lavish Lashes® training does not guarantee certification.
To earn and maintain your Eyelash Extension certification with Lavish Lashes®, you must:
(1) Unless a kit is provided within the price of your course fee, i.e., Classic Mastery/Volume Basics course, Advanced Volume Blends Artistry courses, or certain school programs, you must purchase a Lavish Lashes® kit prior to receiving your certification (or the equivalent of the cost of a kit in retail value for Lavish Lashes® Adhesive, Remover and Lash Extensions); (2) Provide proof of a professional license, formal training, or credentials within the beauty, medical or dental industry; (3) Be able to demonstrate to a certified Lavish Lashes® instructor that you grasp the key concepts; (4) Be able to demonstrate to a certified Lavish Lashes® instructor that you can perform the technique safely; and (5) Maintain the Lavish Lashes® Standard and Good Standing requirements (defined above).
At our sole discretion, you may be invited to attend additional training (at no additional training fee) to make up for any deficiency in the above requirements for certification.
Lavish Lashes reserves the right at any time to request verification of any of the above requirements, which may include but not be limited to before and after photographs of applications of Lavish Lashes products performed by you.
All training classes are taught in English. No interpreters or associates are permitted to attend classes unless approved by Lavish Lashes®. If you would like to have an interpreter or associate attend a class, please contact our office at 888-708-1115 (toll free) or 951-977-9911 for approval. All approved associates or interpreters must sign a confidentiality agreement, and an Observation Fee of $350 may apply.
RESCHEDULING OR CANCELLING TRAINING Lavish Lashes® endeavors to provide you with the best training experience. Doing so requires advance planning and expenditures. Therefore, full refunds on training fees or deposits will not be given after the order is processed.
If you choose to re-schedule your class, you have up to one (1) year from your original class date to pay the applicable administrative fee and take your training. A non-refundable administrative fee applies to all re-scheduling requests as follows:
(1) If written notice of intent to reschedule is received fourteen (14) business days or greater before the scheduled class, the non-refundable administrative fee to reschedule will be 50% of the purchased price of the class.
(2) If written notice of intent to reschedule is received thirteen (13) business days to four (4) business days before the scheduled class, the non-refundable administrative fee to reschedule will be 75% of the purchased price of the class.
(3) If written notice of intent to reschedule is received three (3) business days or less before the scheduled class, or you fail to attend a scheduled class without notice, rescheduling will require full payment for an additional training course.
(4) If you are rescheduling due to illness, such as emergency surgery or hospitalization, or a death in your immediate family (spouse, parents, children, siblings), a $75 administrative fee will apply when proper documentation providing evidence to the event is provided.
(5) If, and only if, you are rescheduling due to severe weather conditions in which local or state authorities declare roads to be unsafe for travel shall an administrative fee be waived.
If you choose to cancel your class, instead of rescheduling, you must provide written notice of your cancellation more than fourteen (14) days prior to your scheduled class. You will receive a refund minus a $350 cancellation fee. Refunds will not be granted for cancellation requests made within fourteen (14) days of your scheduled class.
If Lavish Lashes®, by their own action or due to circumstances beyond the control of Lavish Lashes® has to cancel and reschedule a class, you may elect to do one of the following:
(1) Request a full refund of training fees submitted in writing within seven (7) business days of the cancelled training date. Such a refund only applies to training program fees, not to other fees or expenses registered participants may have incurred or may incur due to the cancellation, including but not limited to travel and lodging expenses, or currency exchange loss.
a) If you elect to return your kit, you will be responsible for shipping fees and for ensuring the kit is returned in un-opened condition. Please contact Lavish Lashes® customer service (firstname.lastname@example.org) within seven (7) business days of the cancelled training for a Return Authorization Number and ship to: Attn: Customer Service, 34266 US Hwy 19 N Palm Harbor, FL 34684
(2) Apply the monies paid for the cancelled training to a future training occurring within twelve (12) months of the cancelled training date. Lavish Lashes® will attempt to reschedule you to the next available training date. If you do not apply the training fee to another class within the twelve (12) months, the training fee will be forfeited.
a) If you choose to attend a rescheduled class, you forgo your right to any refund under this Section.
b) Classes maybe rescheduled only once without an additional fee. Rescheduling a second time will require immediate full payment of the fee for an additional training.
Please see the Force Majeure clause in Section 5 of this Agreement for further details on our policies and their limitations.
TRAINING FORFEITURE In the unlikely event that you: (1) exhibit disruptive classroom behavior or (2) use recording devices, such as audio, video or still photos in any manner, Lavish Lashes® reserves the right to refuse training to you, to require that you remove yourself from the class, and to require that you forfeit any rights to any refunds on the class, training, or the Merchandise purchased. All deposits, payments and/or product credits will be considered forfeited to the benefit of Lavish Lashes®.
Cellphones must be turned off from the start of class and up until the designated time of arrival for your model(s). VIDEO, AUDIO OR ANY OTHER TYPE OF RECORDING OF CLASS CONTENT IS EXPRESSLY PROHIBITED AND INDIVIDUALS IN VIOLATION WILL FIND THEMSELVES SUBJECT TO LEGAL ACTION.
OPPORTUNITY TO RETAKE YOUR CLASS
After attending a course, you have the opportunity to retake the entire course free for an unlimited amount of time to refresh your skills or retest for certification. If you would like to retake a course, please notify our office as soon as possible to reserve your seat, as space is limited and is subject to availability. A $100 administrative fee is required to reserve your seat (includes lunch and materials for class) and you must have “Good Standing” status according to our Terms and Conditions. You will be responsible for providing your own model. Lavish Lashes® may be able to provide a model with adequate notice. A non-refundable fee for the model will apply. Model fee is $150.
MODEL REQUIREMENT FOR TRAINING Lavish Lashes® wants you to get the most you can out of your training experience. Accordingly, Lavish Lashes® asks that you provide your own model to train with during the designated class time. (Preferably a friend or family member, with healthy, dark colored and fairly straight eyelashes for the Lavish Lashes Lash Extension Course. Models may not be individuals who pose a conflict of interest with Lavish Lashes®. Models will be required to complete and consent to the Lavish Lashes Client In-Take/Consent Form and Confidentiality Agreement. If a model is deemed to not be a good candidate for the procedure, or it is brought to our attention that the model may pose a conflict of interest, you will immediately be required to produce an alternate model. Under these circumstances, a model may be provided for you for a minimum of a $100 charge, or you may be provided the option to retake your hands-on portion of the training at a later date.
If you are unable to provide your own model, please contact us as soon as possible, and Lavish Lashes® will attempt to make arrangements for you. A non-refundable fee for the model will apply. Model fee is $150. Models are not permitted to sit through the lecture or any other portion of the training. If you have an associate interested in sitting through the training, please contact our office at (951) 977-9911 for approval as an Observation Fee of $350 may apply.
If you wish to volunteer as a model for another student, and in turn wish to have another student volunteer him/herself to be a model for you, you and that student must agree to not hold each other liable for any injuries sustained as a result of a student’s model lash extension application or removal. Students may only be models for a class they are registered for or have already taken. If you are interested in this option, please contact our office as soon as possible to coordinate.
MEDIA RELEASE You consent to the recording of your likeness and statements (photograph, film, tape or otherwise, known as “LL Media”) and grant to Lavish Lashes® and Lavish Lashes’ assigns, licensees and successors the right to copy, reproduce and use all or a portion of LL Media. This consent includes the right to use your physical likeness in any form, including, without limitation, a photograph, picture, artistic rendering, silhouette or other reproduction by LL Media.
The rights granted herein include the right to use your likeness and statements in LL Media in any marketing material, publication, recording or other medium, and includes the right to edit, delete, and/or juxtapose any part of your likeness or statement in which you appear, and/or change the sequence of events. You permit the use of all or a portion of LL Media otherwise collected by Lavish Lashes® in all forms and media including advertising and related promotion throughout the world and in perpetuity. You grant the right to use your image and name in connection with all uses of LL Media and waive the right to inspect or approve use of LL Media as incorporated by Lavish Lashes®.
You acknowledge that you have no ownership rights in LL Media collected during Lavish Lashes® training and events. Your performance of an eyelash extensions procedure does not grant you any rights or credits in LL Media captured of such procedures.
TRAINING MATERIALS Materials received as part of the Lavish Lashes training program (the “Training Materials”) are considered confidential Intellectual Property as defined in this Agreement, and are authorized for personal use only. Lavish Lashes prohibits the replication or public use of any Training Materials. Any replication or public use of Training Materials will be considered a violation of this Agreement and subject to further legal action.
(3) INTELLECTUAL PROPERTY, CONFIDENTIALITY AND NON-COMPETE
Lavish Lashes® takes the protection of its Intellectual Property interests very seriously.
You certify that by virtue of purchasing and/or attending any Lavish Lashes® training or buying any Lavish Lashes® product, you are not an owner, employee, independent contractor or educator of any other competitor to Lavish Lashes® that offers eyelash extension products and/or training. Should you violate these terms or conditions, then Lavish Lashes® reserves the right to pursue any and all legal and equitable remedies against you.
You may not use, alter, edit or distort the Intellectual Property (defined below) in any way or use the Intellectual Property in association with anything other than the Products and Services and only to further the Purpose in strict adherence to the Standard. Only Certified Lavish Lashes® Specialists in Good Standing are granted these limited rights to use Lavish Lashes® Intellectual Property.
Your use of Lavish Lashes® Intellectual Property is limited to your use of the provided Marketing Program, as applicable, and the techniques so long as they are for the purpose of advancing the Lavish Lashes® Brand. Any action taken that is deemed to compete with Lavish Lashes® business or obfuscate the purpose of allowing a Certified Lavish Lashes® Specialist in Good Standing to use Lavish Lashes® Intellectual Property will be considered in violation of this Agreement and subject to further legal action.
If applicable, you may use the Marketing Materials (defined as the Brand), any advertisements (in whatever medium), and any photographic images, copy, audio and video provided to you by Lavish Lashes® for the purpose (the “Purpose”) of promoting the Products and Services in a manner that strictly adheres to the standard (the “Standard”) of high quality and professionalism as set forth by Lavish Lashes®.
Lavish Lashes® regularly audits its Certified Lavish Lashes® Specialists in Good Standing for their use of marketing materials and any Intellectual Property Lavish Lashes® does hold its registered trademarks and copyrights and will enforce its rights to the maximum extent the law allows.
Lavish Lashes® Intellectual Property (defined as any and all worldwide intellectual property and intellectual property rights), includes but is not limited to, any of the following: (1) rights associated with works of authorship; (2) trademarks, service marks, trade names, logos, common law trademarks and service marks, trademark and service mark registrations, Internet domain names and addresses; (3) rights to trade secrets, proprietary information, know how, reverse know how, technology, technical data, proprietary processes, formulae and materials used, customer lists and supplier lists; (4) patents, provisional patents, continuations and continuations-in-part thereof, improvements, designs and any registration and application thereof; (5) products, machines, equipment, devices, prototypes, discoveries, creations, designs of any kind, procedures, methods of doing business, processes, techniques, documents; and (6) other intellectual property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise.
Confidentiality You recognize that you occupy a position of trust with respect to business information of a secret, proprietary or confidential nature that is the property of Lavish Lashes® and that has been or shall be used by or imparted to you from time to time in the course of your rendering of Services hereunder. You acknowledge and agree that such information, including, without limitation, Confidential Information constitutes important, material, and confidential trade secrets and proprietary information of Lavish Lashes®, and materially affects the successful conduct of Lavish Lashes®’ business and goodwill. You shall not during the Term or thereafter, except in the good faith performance of Services pursuant to this Agreement, use or disclose, directly or indirectly, any of the Confidential Information for your own benefit, or for the benefit of any third party, without the written consent of Lavish Lashes®.
Without limiting the foregoing, you shall disclose Confidential Information to one of its employees and/or contractors only with the prior written permission of Lavish Lashes® and only to the extent such employee and/or contractor, respectively, has previously signed and entered into a written confidentiality agreement requiring such employee and/or contractor, respectively, to keep the Confidential Information confidential with a degree of secrecy in all respects equal to or greater than the degree of secrecy required of you under this Agreement.
Immediately upon request of Lavish Lashes®, or upon termination of the Agreement for any reason, you shall deliver to Lavish Lashes® any and all materials, including any Documents, memoranda, notes, plans, records, reports, electronic records, or other writing or recordings, and any copies thereof, relating to the Confidential Information or to Lavish Lashes®’ operations or business which you may then possess or have under your control. Nothing herein shall be construed as requiring you to disclose information developed or known to you prior to your engagement by Lavish Lashes®.
The confidentiality provisions of the Agreement shall be effective as of the date you first received any Confidential Information, or the Effective Date, whichever is earlier. ALL CONFIDENTIAL INFORMATION (AND ANY OTHER INFORMATION PROVIDED TO YOU BY Lavish Lashes IS PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. Neither party makes any representation or warranty as to the accuracy or completeness of the Confidential Information or any component thereof. The definition of Confidential Information includes any Confidential Information that was disclosed prior to the full execution and delivery of this Agreement. The obligations of this section shall continue in perpetuity beyond termination of the Agreement.
Non-Use and Non-Compete You shall not use Lavish Lashes®’ Confidential Information for any purpose except to evaluate or engage in discussions concerning the Business Opportunity and/or to effectuate potential transactions between you and Lavish Lashes®. You shall not, without Lavish Lashes’ written consent, use Lavish Lashes’ Confidential Information to develop your own business or to compete with Lavish Lashes®, nor shall Recipient reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody Lavish Lashes’ Confidential Information. You shall not directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass, or obviate Lavish Lashes’ interest, or the interest or relationship between Lavish Lashes® and its providers or manufacturers, to change, increase or avoid directly or indirectly: (1) payment of established or to be established fees or commissions; (2) continuance of pre-established relationships; or (3) to obtain rights or access to technologies directly. In the event that one or several of the providers or manufacturers does not renew any existing rights or similar contracts or ceases its relationship with Lavish Lashes®, you cannot directly contact the provider or manufacturer for a period of five (5) years from the rights lapsing or the relationship being terminated without the expressed written permission of Lavish Lashes®.
Lavish Lashes reserves the right to refuse service to any person. Client represents and warrants they are not an employee of, or otherwise associated with, any existing eyelash extensions training company, and Client does not intend to form any such a competing company (“Conflicted Client”). Lavish Lashes may, in its sole discretion, refuse service to any such Conflicted Client. If service is refused on such a basis, a refund will NOT be granted.
(4) LIMITATION OF LIABILITY
INDEMNIFICATION AND WAIVER OF LIABILITY YOU AGREE TO DEFEND, HOLD HARMLESS, AND INDEMNIFY LAVISH LASHES®, ITS OWNERS, OFFICERS, DIRECTORS, AGENTS, INDEPENDENT CONTRACTORS, TRAINERS, EMPLOYEES, SUPPLIERS AND LICENSORS (THE “Lavish Lashes® PARTIES”) AGAINST ALL COSTS, DEMANDS, LIABILITIES, EXPENSES, AND LOSSES, (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED THROUGH YOUR VIOLATION OF THESE TERMS OR INCURRED THROUGH ANY CLAIMS BY THIRD PARTIES AGAINST THE Lavish Lashes® PARTIES BASED UPON YOUR USE OR APPLICATION OF Lavish Lashes® PRODUCTS ON ANY PERSON.
YOU ALSO AGREE THAT ANY LIABILITY OF THE Lavish Lashes® PARTIES CONCERNING THESE PRODUCTS, REGARDLESS OF THE THEORY UPON WHICH RELIEF MAY BE BASED (WHETHER CONTRACT, TORT OR OTHERWISE), SHALL BE LIMITED TO THE AMOUNT OF MONEY YOU HAVE PAID TO THE Lavish Lashes® PARTIES FOR THE SPECIFIC PRODUCT AT ISSUE, AND THAT, WITHOUT THIS RESTRICTION, THE Lavish Lashes® PARTIES WOULD REFUSE TO SELL THESE PRODUCTS TO YOU.
IN NO EVENT WILL THE LAVISH LASHES® PARTIES BE LIABLE FOR ANY CLAIMS, DEMANDS, DAMAGES, LIABILITIES, SUITS, ATTACHMENTS, JUDGMENTS, LOSSES, PENALTIES, FINES, SETTLEMENTS, EXPENSES, INCLUDING COURT COSTS AND REASONABLE ATTORNEYS’ FEES INCIDENT THERETO, INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OR MISUSE OF PRODUCTS OR SERVICES SOLD BY LAVISH LASHES®.
YOU SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE Lavish Lashes® PARTIES FOR ALL SUCH CLAIMS AND ACTIONS IN EACH CASE NOTWITHSTANDING THE ACTUAL OR ALLEGED NEGLIGENCE (WHETHER ACTIVE OR PASSIVE, SOLE OR CONCURRENT, SIMPLE OR GROSS), STRICT OR STATUTORY, PROVIDED THAT THE LAVISH LASHES® PARTIES’ LIABILITY WILL BE LIMITED TO THE PRICE OF THE PRODUCT.
All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Merchandise Agreement illegal, invalid or unenforceable.
(5) GENERAL PROVISIONS
NO AMENDMENT OR WAIVER This Merchandise Agreement may not be modified, amended, or waived in any manner except by a written instrument signed by both parties hereto. The waiver by either party of compliance with any provision of this Merchandise Agreement by the other party shall not operate or be construed as a waiver of any other provisions of this Merchandise Agreement.
ASSIGNMENT You may not assign or subcontract your respective rights under this Agreement in any way without our prior written consent. Any attempted assignment, transfer or other disposition by you shall be null, void, and of no force and effect. Lavish Lashes® may, without your consent, freely assign and/or subcontract our rights under this Agreement. This Agreement shall inure to the benefit of Lavish Lashes® and our respective permitted successors or assigns.
COUNTERPARTS/EXECUTION/HEADINGS This Merchandise Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute a single agreement. Delivery of an executed counterpart by facsimile shall be equally as effective as personal or any other type of delivery of an executed counterpart. The headings of sections and paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any provisions herein.
SCOPE OF AGREEMENT/SEVERABILITY This Merchandise Agreement shall bind and inure to the benefit of Lavish Lashes® and its successors and assigns, and to you and your successors. You shall not assign any of your duties or obligations under this Merchandise Agreement. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law. If, in spite of the foregoing, any provision of this Merchandise Agreement shall be judged invalid, illegal, or unenforceable in any applicable jurisdiction, such provision shall be restricted or deleted in such jurisdiction only to the extent necessary to make such provision valid, legal, and enforceable in such jurisdiction. The validity, legality and enforceability of such provision in any other jurisdiction, or of any other provision of this Merchandise Agreement remains.
Force Majeure In the event that Lavish Lashes® cannot contract with you as scheduled hereunder because it becomes impracticable as a result of an Act of God, accident, fire, incapacity, labor controversy, riot, war, civil commotion, act of government, terrorism or other cause outside the control of Lavish Lashes®, Lavish Lashes® shall have the right in its sole discretion to RESCHEDULE WITH YOU AS SOON AS REASONABLY PRACTICAL after the end of such force majeure. Lavish Lashes® shall reschedule the training hereunder as soon as reasonably practicable following the date of such occurrence. In the event Lavish Lashes® is prevented from performing obligations hereunder as a result of any contingency which is beyond the control of such party (such as interruptions in Lavish Lashes® travel schedule or unforeseen unavailability of Lavish Lashes), Lavish Lashes® reserves the right to reschedule training. In the event that a Lavish Lashes® training cannot be conducted because of a lack of minimum student attendance, Lavish Lashes® reserves the right to reschedule the training.
LIMITATION OF REMEDIES Upon any breach of this Merchandise Agreement by Lavish Lashes®, and subject to the Governing Law/ Arbitration provision, you may bring an action at law for damages (if any), but shall not be entitled to rescind this Merchandise Agreement or to restrain in any way the production, reproduction, manufacture, distribution, public performance, public display, exhibition, advertising, merchandising, marketing, promotion sale, distribution or other exploitation of any rights granted to or vested in Lavish Lashes® hereunder. Notwithstanding any of the above, in each and every instance, LAVISH LASHES’ LIABILITY WILL BE LIMITED TO THE PRICE PAID FOR ANY MERCHANDISE.
GOVERNING LAW /ARBITRATION This Merchandise Agreement shall in all respects be governed by the laws of the State of Florida applicable to agreements executed and wholly performed within such State, without regard to any conflict of laws principles thereof. Except as explicitly provided for otherwise herein, any controversy or claim arising under or in connection with this Merchandise Agreement, or in connection with the validity, construction, performance, or purported breach of this Merchandise Agreement, or in connection with the subject matter of this Merchandise Agreement, shall be resolved by final, binding, and non-appealable arbitration conducted by a single arbitrator and administered by JAMS in the city of Boca Raton, Florida, all in accordance with JAMS Streamlined Arbitration Rules and Procedures (the “Rules”), as they may be amended and in effect at the time the arbitration is filed, regardless of the amount in dispute, and judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. To be clear, without limiting the previous sentence, the arbitration shall be commenced and the arbitrator shall be chosen in accordance with the procedures set forth in the Rules, which are incorporated herein and made a part of this Merchandise Agreement by reference. The parties agree that they will abide by and perform any award rendered in any such arbitration and that any court having jurisdiction may issue a judgment based upon the award. The prevailing party in any arbitration or any other legal proceeding shall be entitled to reimbursement of all costs of the arbitration or legal proceeding, respectively, including but not limited to filing fees and expenses, arbitrator fees and expenses, witness fees and expenses, and reasonable outside attorneys’ fees and expenses. The prevailing party in any arbitration (or any other legal proceeding) shall be entitled to reimbursement from the other party of all costs of the arbitration (or other legal proceeding, respectively), including but not limited to filing fees and expenses, arbitrator fees and expenses, witness fees and expenses, and reasonable attorneys’ fees and expenses. BY AGREEING TO FINAL AND BINDING ARBITRATION, YOU ARE WAIVING YOUR RIGHT TO (A) A TRIAL BY JURY OR A JUDGE, IN A STATE OR FEDERAL COURT, (B) FINDINGS OF FACT AND USE OF THE RULES OF EVIDENCE PURSUANT TO THE FLORIDA EVIDENCE CODE OR THE FEDERAL RULES OF EVIDENCE, (C) AN APPEAL (EXCEPT ONE IN LIMITED CIRCUMSTANCES AND LIMITED IN SCOPE), AND (D) FORMAL DISCOVERY RIGHTS WHICH PARTIES TO A LAWSUIT GENERALLY HAVE. To be clear, nothing herein shall be construed to limit Lavish Lashes® right to seek equitable and/or other relief.
USE OF MARKETING PROGRAM
Certified Lavish Lashes® Specialists who maintain both their Certification status (as defined in the Merchandise & Training Program Agreement/Terms & Conditions) and “Good Standing” status (as defined in the Merchandise & Training Program Agreement/Terms & Conditions) are eligible to participate in the Lavish Lashes® Marketing Program.
The intent of the program is to promote Certified Lavish Lashes® Specialists in “Good Standing.” Qualified Lavish Lashes Specialists are promoted by this program by direct leads through the website directory of Certified Lavish Lashes® Specialists Specialist, and through the use and benefits of the Lavish Lashes® Marketing Materials (defined as the “Brand”).
Participation in the Lavish Lashes® Marketing Program includes:
1. A listing in the website directory of Certified Lavish Lashes® Specialists
2. Access to purchase or order Lavish Lashes® Marketing Materials from the website or by calling 888-708-1115 (toll free) or 951-977-9911
MARKETING PROGRAM FEES AND CANCELLATION
To participate in the Marketing Program, a Certified Lavish Lashes® Specialist must pay an annual marketing fee of $150.00, which is an automatic annual renewable subscription. Lavish Lashes® reserves the right to suspend without notice use of the Lavish Lashes® Marketing Program for those individuals who are unable or unwilling to remain in “Good Standing.” In such instances, no refunds are provided for any unused portion of a paid subscription. Marketing fees will not be renewed for individuals who have been suspended from the Lavish Lashes® Marketing Program.
After the first year, specialists in “Good Standing” may cancel their Marketing Program subscription with written notice. A prorated refund will be issued within thirty (30) days of cancelation. Refunds are processed within seven to fourteen (7-14) business days.
The annual fee for participation in the Lavish Lashes® Marketing Program may be paid on the Lavish Lashes® website at: https://www.lavishlashes.com/products/marketing-c-16.html or by calling 888-708-1115 (toll free) or 951-977-9911.
USE OF MARKETING MATERIALS
Certified Lavish Lashes® Specialists may use the Brand, any advertisements (in whatever medium), and any photographic images, copy, audio and video when approved and provided to you by Lavish Lashes® for the purpose of promoting the Products and Services (the “Purpose”) in a manner that strictly adheres to the standard of high quality and professionalism as set forth by Lavish Lashes® (the “Standard”). Lavish Lashes® will provide you with the requisite marketing materials. Do not at any time take materials from Lavish Lashes® website or other sources to use as the Brand.
Lavish Lashes® regularly audits its Certified Lavish Lashes® Specialists in “Good Standing” for their use of the Brand and any intellectual property (as defined in Section 3 of this Agreement). Lavish Lashes® does hold its registered trademarks and copyrights and will enforce its rights to the maximum extent the law allows.
Any additional use of Lavish Lashes® images, text or copyrighted materials, provided to its Certified Lavish Lashes® Specialists as part of their certification is prohibited without written permission from Lavish Lashes®. Without limiting the foregoing, any Certified Lavish Lashes® Specialist in “Good Standing” must provide Lavish Lashes® with a copy of any intended advertisement that incorporates (wholly or in part), makes use of, or references the Brand, as well as the stated purpose of such advertisement. Specific written approval must be received from Lavish Lashes® prior to publishing, airing, or distributing such advertisement. Any use of the Brand must be in accordance with the Standard and the Purpose at all times, and must not involve any alteration, editing or distortion of the Brand whatsoever, except as explicitly approved beforehand in writing by Lavish Lashes®.