TERMS OF USE

TERMS OF USE

Last updated: September 22, 2022

 

The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Terms of Use” or “Terms”) apply to websites, mobile applications, and any other digital media, platforms, products, or services owned, operated, utilized, or provided by Barbie Kalev, Inc. (“BKI”, “we”, “our”, or “us”) and govern your access to and use of certain products or services we own, operate, utilize, or provide, including the website located at www.barbiekalev.com (the “Site”), mobile versions of the Site, downloadable mobile applications, podcasts, chat rooms, private forums or groups, and message boards, services that allow you to submit content to us, services that allow you to access content we own or provide, as well as BKI accounts on social media platforms, including, but not limited to, Facebook, Instagram, Twitter, and YouTube (collectively, the “Services”), including any content, functionality, or services offered on or through the Site or any Services. These Terms also govern your access to and use of any products, services, materials, and merchandise offered or made available by, or purchased by you from, BKI through the Site or any Services (including, but not limited to, digital downloads and access to, and participation in, workshops, coaching, online courses, or related materials) (individually and collectively, “Product(s)”). 

 

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SITE OR ANY SERVICES OR PRODUCTS. BY ACCESSING OR USING THE SITE OR ANY SERVICES OR PRODUCTS, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SITE OR ANY SERVICES OR PRODUCTS. 

 

THESE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

 

BKI reserves the right to update or modify these Terms at any time without prior notice. Your continued use of the Site or any Services or Products after the “last revised” date of any changes to these Terms is deemed acceptance of the revised Terms. For this reason, we encourage you to review these Terms each time you visit the Site or any Services. 

 

  1. RESTRICTIONS ON USE; LIMITED LICENSE

 

All content contained on the Site or provided in or in connection with any Services or Products, such as text, graphics, logos, icons, images, audio and video clips, digital downloads, and data compilations (collectively, “Content”), is owned by BKI or our licensors or licensees, and the compilation of the Content on the Site and in or in connection with any Services or Products is our exclusive property, protected by United States and international copyright laws, treaties and conventions. 

 

Any trademarks, service marks, logos, and trade names (each, a “Mark”) on the Site or Services or in the Products are registered and unregistered trademarks of BKI or our licensors or licensees. Our Marks may not be used in connection with any product or service that is not ours in any manner that is likely to cause confusion among users or that disparages or discredits us or anyone else. All other Marks not owned by us that appear on the Site or in the Products are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. Nothing on the Site or any Services or in the Products should be construed as granting any license or right to use any Mark displayed on the Site or any Services or in any Products. You may not use any Marks without the prior written permission of BKI. 

 

BKI grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to access and use the Site, any applicable Services, and any Products you purchase for personal, noncommercial purposes, and to print or download one (1) copy of the Content that we make available to you for such purposes, provided that you keep intact all copyright, trademark and other proprietary rights notices. 

 

Except for the foregoing limited license, no right, title, or interest in the Site, Services, or any Content, Mark, or Products shall be transferred to you. Your use of the Site, Services, any Products, and any Content available on or through the Site or any Services or in or in connection with any Products is strictly prohibited, except as specifically authorized in these Terms. You agree not to copy, share, modify, distribute, republish, display, or transmit the Site, any Services or Products, or any Content made available on or in connection with the Site or any Services or Products (including, but not limited to, any materials provided to you in connection with the Products) without the prior written permission of BKI. You may not record, copy, distribute or otherwise transmit any live or recorded offerings (such as live or recorded online classes or live one-on-one sessions) without the prior written permission of BKI. 

 

The license granted to you does not include, and specifically excludes, any rights to: resell, exploit, or make any commercial use of the Site, any Services or Products, or any Content; collect and use any Product listings, descriptions, or prices; make any derivative use of the Site, any Services or Products, or any Content; download or copy account information for the benefit of anyone else; or use any form of data mining, robots, or similar data gathering and extraction tools. You may not frame, or utilize framing techniques to enclose, the Site, any Services, Content, or any Product, Mark, or other proprietary information, or use any meta tags or any other “hidden text” utilizing any such intellectual property, without our and each applicable owner’s express written consent. Any unauthorized use automatically terminates the license granted to you hereunder. 

 

  1. USER ACCOUNTS; ACCURACY OF ACCOUNT INFORMATION

 

Only you may use your user account, and you may not provide any third party with the username and password to access your account. You are solely responsible for all activity that takes place with your user account. You are responsible for the personal protection and security of any password or username that you may use to access the Site or any Services or Products, and it is your responsibility to ensure that your password remains confidential and secure. You must promptly notify us via e-mail at [email protected] if your password is lost, stolen or used without permission.

 

BKI reserves the right to terminate any user account in the event you fail to comply with any of these Terms of Use or our Privacy Policy.  We reserve the right to terminate your user account, cancel or limit any order, or to refuse, restrict, or discontinue service or access to the Site, Services, or Products (or any portions, components, or features of the Site or any Services or Products) to or by you or any other person or entity, for any reason or for no reason whatsoever, at any time in its sole discretion, without notice or liability.

 

You agree that all information supplied by you to us will be true, accurate, current and complete. You agree to provide current, complete and accurate purchase and account information for all purchases of any Products. You agree to promptly update your account and other information, including, but not limited to, your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

 

  1. AGE OF USERS

 

By accepting these Terms through your use of the Site or any Services or purchase or use of any Product, you certify that you are 18 years of age or older.  Our Site, Services, and Products are marketed for and directed towards purchase by adults or with the consent of adults. Individuals under the age of 18 (“Minors”) are not permitted to purchase Products from the Site or any Services without the supervision of a parent or legal guardian who agrees to be bound by these Terms.

 

  1. RECORDINGS, USER SUBMISSIONS AND USER-GENERATED CONTENT

 

By participating in any Products or public forums made available in connection with the Site or any Services or Products (including, without limitation, online courses, conference calls, webinars, online interactive offerings, etc.), you hereby irrevocably grant to BKI and our designees the right to photograph or record you and/or your voice by all means of recording technology (“Recordings”). You agree that BKI shall be the exclusive owner of all copyright and other rights and proceeds in and to the Recordings, and you hereby irrevocably transfer, assign and convey all right, title and interest you may have in and to the Recordings to BKI.

 

If we request and you provide us with your permission, you agree that we may, in our sole discretion, (i) edit, reproduce, distribute, broadcast, publish, create derivatives of and otherwise exhibit any such Recordings; and (ii) use such Recordings, in whole or in part, along with your name, photographs, likenesses, and biographical information in and in connection with the Site, any Services or Products, or for any other purpose in any and all manner and media now known or hereafter devised, throughout the world, in perpetuity, including, but not limited to, for purposes of publicity, advertising and promotion of BKI and our Products, all without any payment to you or further authorization from you. 

 

You may submit, or otherwise make available to BKI, comments, Product or other reviews, testimonials or endorsements, suggestions, photos, videos, materials, information, ideas and other content or communication to BKI though the Site or any Services or otherwise disclose, submit offer such information in connection with your use of the Site or any Services or Products (collectively, the “User Contribution(s)”).  By doing so, you represent and warrant that you own or otherwise control all of the rights to any User Contribution, that the User Contribution is accurate, and that it complies with the content standards set forth in Section 5 below. Any User Contribution you post to the Site or any Services or otherwise provide to BKI will be considered non-confidential and non-proprietary, and with respect to any User Contributions submitted or otherwise make available to BKI, you hereby grant BKI and its designees a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right and license to reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, display, and otherwise use such User Contribution, in whole or in part, for any purpose whatsoever throughout the world in any media, whether now known or hereafter created, all without any payment to you or further authorization from you. By submitting any User Contribution, you hereby irrevocably grant BKI and our designees the right to use your name, photographs, likenesses, and biographical information that you provide in connection with such User Contributions, and in connection with the Site, any Services or Products, or for any other purpose in any and all manner and media now known or hereafter devised, throughout the world, in perpetuity, including, but not limited to, for purposes of publicity, advertising and promotion of BKI and our Products, all without any payment to you or further authorization from you. You affirm that any testimonial or endorsement you provide to BKI is accurate and represents your current honest opinions, findings, beliefs, or experience with BKI or its Products.

 

You hereby release BKI and its designees from any Claims you now or hereafter may have in connection with any Recordings, User Contributions, or other rights you grant to BKI or its designees in these Terms or any exploitation thereof.

 

The posting of any third-party, user-generated submissions or User Contributions does not constitute BKI’s endorsement of those submissions. BKI cannot undertake to review all material before it is posted on the Site or any Services and cannot ensure prompt removal of objectionable material after it is posted.  Accordingly, BKI assumes no responsibility or liability for any action or inaction regarding any User Contributions or other content provided by you or any third-party.  BKI reserves the right, but shall not be obligated, to monitor and edit or remove any user activity, content, or User Contributions.

 

Notice of Copyright Infringement

 

If you are a copyright owner who believes your copyrighted material has been copied, posted, or distributed on or through the Site or any Services in a way that infringes your copyright rights, please inform our designated Copyright Agent by sending written notice by U.S. Mail to Barbie Kalev, Inc., Attn: Copyright Agent, Barbie Kalev, Inc., 2003 Texas 114 Hwy,  Suite 340#2, Trophy Club, Texas, 76262, or by email to [email protected]. Pursuant to the Digital Millennium Copyright Act, to be effective you must include the following information in your written notice: 

 

  • A detailed description of the copyrighted work you believe is being infringed;
    • A description (such as the subdomain link) of the location on the Site or applicable Services where the allegedly infringing content appears;
    • Your contact information, including your name, address, telephone number, and, if available, email address;
    • A statement that you have a good faith belief that the allegedly infringing use is not authorized by you as the copyright owner, by your agent, or by law;
    • A statement affirming that, under penalty of perjury, the information in the notice is accurate and that you are, or are authorized to act on behalf of, the copyright owner; and
    • An original or electronic signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement. 

 

  1.   PROHIBITED USES


You shall not knowingly post, transmit, redistribute, upload, or promote any User Contributions, communications, content or materials to or from the Site, any Services, or in connection with any Products that (a) contain corrupted files, viruses, or any other similar software files; (b) are unlawful, threatening, harassing, abusive, inflammatory, defamatory, invasive of privacy or publicity rights, infringing on any intellectual property rights, vulgar, obscene, sexually explicit, pornographic, hateful, profane, indecent, racially, ethnically derogatory, or otherwise violate any right of any third party;  (c) are likely to upset, embarrass, alarm, inconvenience or annoy any other person; (d) contain chain letters or pyramid schemes; (e) contain any unsolicited advertising, promotional materials, mass mailings, “spam,” political campaigning, or other forms of solicitation to other users, individuals or entities; (f) impersonate any individual, business or entity, including our company and our employees and agents; (g) encourage conduct that would constitute a criminal offense; (h) involve commercial activities, sales, contests, sweepstakes and other sales promotions, barter or advertising; (i) give the impression that they emanate from or are endorsed by us or any other person or entity if this is not the case; (j) give rise to civil or criminal liability; (k) otherwise violate any law; or (l) amount to any conduct that, in the judgment of BKI, is otherwise objectionable, restricts, impairs, interferes or inhibits any user from using or enjoying the Site or any Services, Content or Products, or may harm BKI or users of the Site or any Services, Content or Products or expose them to liability, or otherwise injurious to third parties. In addition to any remedies that BKI may have at law or in equity, if BKI determines, in its sole discretion, that you have violated or are likely to violate the foregoing prohibitions, it may take any action it deems necessary to cure or prevent the violation, including without limitation, the immediate removal of the related materials from the Site or Services. BKI reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content. BKI will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.

 

  1. PAYMENTS; REFUND POLICY

 

Payments. 

All prices, discounts, promotions, and availability posted on the Site, any Services, or in connection with any Products are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed and will be set out in your order confirmation. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your purchase total, and will be itemized in your shopping cart and in your order confirmation. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

 

We may offer from time to time promotions on or in connection with the Site, Services, or certain Products that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern. 

 

By confirming your purchase at the end of the checkout process, you agree to pay for the Product(s) requested, including shipping and handling charges and all applicable taxes, if any. BKI may provide you with the ability to purchase Products by making payment, or two or more partial payments, on an automatic, recurring monthly basis as described on the Site or Services or in connection with such Products (“Recurring Payment”). By purchasing a Product subject to a Recurring Payment, you acknowledge that such Product has an initial and recurring payment feature and you accept responsibility for all charges for any such Product(s) until paid in full. Recurring Payments are automatically renewed and billed to your credit card or other method of payment on a monthly basis.  

 

You hereby authorize BKI to bill your credit card or other payment method as described above.  Fees are exclusive of all taxes and shipping, and you are responsible for paying any sales, use or other taxes and shipping charges which may be related to any Products. Any amounts not paid when due shall bear interest at the rate of 1.5% per month, or the maximum legal rate if less. If any fee cannot be charged to your credit card or other payment method for any reason, BKI may provide you, via email, notice of such non-payment and a link for you to update your payment information.  If such non-payment is not remedied within seven (7) days after receiving such notice of non-payment, then BKI may immediately terminate your access to any Products, in addition to any other remedies BKI may have.

 

Terms of payment are within our sole discretion and, unless otherwise allowed or agreed by us in writing, payment must be received by us before our acceptance of an order or delivery of any Products. We utilize third-party payment gateways, such as PayPal or Stripe, for all purchases. You represent and warrant that (i) the credit card or other payment information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card or other payment method for the purchase, (iii) charges incurred by you will be honored by your credit card company or other payment method, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site or Services or in connection with such Product(s) at the time of your order. 

 

Refund Policy.

Your satisfaction with your Program, Product or Service is important to us. Yet, because of the extensive time, effort, preparation and care that goes into creating and/or providing our Products, we have a no refund policy. Unless otherwise provided by law, you acknowledge that we do not offer refunds for any portion of your payment for any of our Products, and no refunds will be provided to you at any time. By using and/or purchasing any of our Products, you understand and agree that all sales are final and no refunds will be provided.

 

  1. DISCLAIMERS, DISCLAIMER OF WARRANTIES, AND LIMITATION OF LIABILITY

 

Medical Disclaimer. 

The Site, Services, and our Products are not to be perceived as or relied upon in any way as medical advice or mental health advice. The information provided in connection with the Site, Services, and our Products is not intended to be a substitute for professional medical advice, diagnosis or treatment that can be provided by your own physician, nurse practitioner, physician assistant, therapist, counselor, mental health practitioner, licensed dietitian or nutritionist, member of the clergy, or any other licensed or registered health care professional. Do not disregard professional medical advice or delay seeking professional advice because of information you have read in the Site, Services, or our Products, or received from us. Do not stop taking any medications without speaking to your physician, nurse practitioner, physician assistant, mental health provider or other health care professional. If you have or suspect that you have a medical or mental health issue, contact your own health care provider promptly.  We are not providing health care, medical or nutrition therapy services or attempting to diagnose, treat, prevent or cure in any manner whatsoever any physical ailment, or any mental or emotional issue, disease or condition. We are not giving medical, psychological, or religious advice whatsoever.

 

Legal and Financial Disclaimer. 

The Site, Services, and our Products are not to be perceived or relied upon in any way as business, financial or legal advice. The information provided in connection with the Site, Services, and our Products is not intended to be a substitute for professional advice that can be provided by your own accountant, lawyer, or financial advisor. We are not giving financial or legal advice in any way. You are hereby advised to consult with your own accountant, lawyer or financial advisor for any and all questions and concerns you have regarding your own income and taxes pertaining to your specific financial and/or legal situation. You agree that we are not responsible for your earnings, the success or failure of your business decisions, the increase or decrease of your finances or income level, or any other result of any kind that you may have as a result of information presented to you in connection with the Site, Services, and our Products, or that you may otherwise receive from us. You are solely responsible for your results.

 

Earnings Disclaimer. 

You acknowledge that we have not and do not make any representations as to the health physical, mental, emotional, spiritual or health benefits, future income, expenses, sales volume or potential profitability or loss of any kind that may be derived as a result of your use of the Site, Services, or any of our Products. We cannot and do not guarantee that you will attain a particular result, positive or negative, financial or otherwise, through the use of the Site, any Services, any of our Products, or other information you receive from us, and you accept and understand that results differ for each individual. We also expressly disclaim responsibility in any way for the choices, actions, results, use, misuse or non-use of the information provided or obtained through the Site, any Services, and our Products, or that you may otherwise receive from us. You agree that your results are strictly your own and we are not liable or responsible in any way for your results.

 

Disclaimer of Warranties.

THE SITE, SERVICES, AND PRODUCTS ARE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. YOUR USE OF THE SITE, SERVICES, AND ANY PRODUCTS IS AT YOUR RISK. THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES PROVIDED ON, THROUGH, OR IN CONNECTION WITH THE SITE, SERVICES, OR PRODUCTS ARE PROVIDED "AS IS" AND “AS AVAILABLE.” BKI DOES NOT GUARANTEE OR WARRANT CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE, SERVICES, OR PRODUCTS OR THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR ANY WEBSITE WILL BE FREE OF VIRUSES OR DESTRUCTIVE CODE. BKI DOES NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE INFORMATION, MATERIALS, CONTENT, PRODUCTS OR SERVICES PROVIDED ON, THROUGH, OR IN CONNECTION WITH THE SITE, SERVICES, OR PRODUCTS, AND BKI MAKES NO COMMITMENT AND ASSUMES NO DUTY TO UPDATE SUCH INFORMATION, MATERIALS, CONTENT, PRODUCTS OR SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BKI HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

Limitation of Liability.

IN NO EVENT SHALL BKI BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE SITE OR SERVICES AND/OR THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM OR IN CONNECTION WITH THE SITE OR SERVICES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT, BUSINESS INTERRUPTIONS, LOSS OF SAVINGS, LOSS OF GOODWILL, LOSS OF DATA OR DAMAGES RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENT, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF BKI IS EXPRESSLY ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS YOU HAVE ORDERED THROUGH THE SITE OR SERVICES WITHIN THE PRIOR 12-MONTH PERIOD.

 

CERTAIN STATE LAWS IN THE UNITED STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF YOU ARE DISSATISFIED WITH ANY OF THE CONTENTS OF THE SITE, SERVICES, OR ANY PRODUCTS, OR DO NOT AGREE WITH THESE TERMS, WITH BKI’S PRIVACY POLICY OR ANY OTHER POLICIES OF THE SITE, SERVICES, OR ANY PRODUCTS, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF THE SITE, SERVICES, OR PRODUCTS.

 

SEE SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 7. 

 

  1. INDEMNITY

 

To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold BKI , its subsidiaries, affiliates, co-brand partners, and other parties with which BKI  is under contract or affiliated, and their respective officers, directors, employees, contractors and agents free and harmless from and against any claims, actions, demands, liabilities, judgments, awards, losses, damages, costs and expenses (including, but not limited to, any reasonable legal and accounting fees) related to or arising from your use of the Site, Services, or any Products and/or your breach of the Terms of Use, Privacy Policy, and/or resulting from any and all content you submit to BKI and/or the Site or any Services. 

 

SEE SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 8.

 

  1. THIRD-PARTY WEBSITES AND PLATFORMS

 

The Site, Services, and certain Products may be hosted on, made available through, or contain links to other websites or platforms that are not owned, operated or controlled by BKI (the “External Sites”). These links are provided solely as a convenience to you, and do not constitute an endorsement by BKI of the content of such External Sites nor of the business practices, products or services of such third-party businesses, entities or individuals. You acknowledge that BKI is not responsible for the availability of, or any third-party content located on or through, any External Sites. You should carefully review the terms of use and privacy policies on any External Sites. Access to any third-party websites or platforms, including any External Sites, is at your own risk and BKI will have no liability arising out of or related to such websites or platforms or for any damages or loss caused or alleged to be caused by or in connection with any purchase, use of, or reliance on, any such content, products or services available on or through any such External Sites.  You acknowledge that the Site, Services, and Products are in no way sponsored, endorsed, administered by, or associated with, Facebook, Instagram, Twitter, YouTube, or any other External Sites (unless otherwise expressly stated).  

 

  1. GOVERNING LAW; JURISDICTION

 

By accessing or using the Site, Services, or any Product(s), you agree that the Site, Services, any Product(s), these Terms of Use, our Privacy Policy, and any dispute of any sort that might arise between you and BKI will be governed by and construed in accordance with applicable federal law, and the laws of the State of Texas, without regard to principles of conflicts or choice of law. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Dallas County, Texas, USA, for all disputes arising out of or relating to the Site, any Services or Product(s), these Terms of Use, our Privacy Policy, and any dispute of any sort that might arise between you and BKI that are heard in court (excluding arbitration and small claims court). BKI makes no representation that Content or other materials on the Site or any Services or in any Products are appropriate or available for use outside of the United States. Those who choose to access the Site or any Services or Products from other locations do so on their own initiative and are responsible for compliance with applicable local laws. 

 

IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN SECTION 18. 

 

  1. ELECTRONIC COMMUNICATIONS

 

When you visit or use the Site, Services, or certain Products, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you in a variety of ways, such as by e-mail, text, or by posting notices and messages on the Site, Services, or in connection with certain Products. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

If you provide a mobile or residential phone number to BKI, you warrant and represent to us that you are either the account owner of any mobile or residential phone numbers you provide to BKI, or you have the express permission of the account holder to provide such numbers (“Provided Numbers”). You expressly consent that we may call or text any Provided Number with account, marketing and advertising messages made using an automatic telephone dialing system or otherwise. You also understand that consent to receive calls and text messages is not a requirement for your use of the Site or any Services or Products, and you may revoke your consent at any time.

 

  1. INTERNATIONAL LAW

 

We control, operate, and administer the Site and Services from the United States. The Site, Services, Content, Product information, and any Products sold or provided through the Site or Services are intended to comply with U.S. laws and regulations.  If you are a non-U.S. based user, be advised that other countries may have laws, regulatory requirements, and product safety requirements that are different than those in the U.S.  BKI makes no representation that Content or other materials on the Site or Services or in any Products are appropriate or available for use outside of the United States. It is your responsibility to ascertain and obey all applicable local, state and federal and international laws in regard to your access or use of the Site or Services, or the purchase, possession, use and sale of any Products purchased from the Site or any Services.

 

  1. GENERAL

 

These Terms of Use, including all documents or policies referenced herein or set forth on the Site or Services or in connection with certain Products, represents the entire understanding between you and us regarding your relationship with BKI and supersedes any prior or contemporaneous understandings, agreements, statements or representations, whether written or oral. If any provision of these Terms of Use or Privacy Policy is held to be invalid, void or unenforceable for any reason, such provision shall be struck and the remaining provisions shall remain enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that these Terms of Use and Privacy Policy and all agreements and notices incorporated herein may be automatically assigned by BKI, in our sole discretion, to a third party. You may not assign these Terms of Use or your obligations to any other individual or entity, and any attempt by you to do so is void. 

 

SEE SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 13.

 

  1. PRIVACY POLICY 

 

BKI’s use of any information you provide us is governed by the terms of our Privacy Policy, which is incorporated herein by reference.  By accessing or using the Site or any Services or Products, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.   

 

  1. SURVIVAL 

 

The provisions regarding the parties’ rights and obligations with respect to indemnification, intellectual property, dispute resolution, and confidentiality, as well as any other provisions necessary to interpret the respective rights and obligations of the parties under these Terms, shall survive the expiration or termination of these Terms. 

 

  1. REVISIONS TO SITE, SERVICES, PRODUCTS, AND TERMS OF USE

 

BKI may terminate, change, suspend or discontinue any aspect of the Site or any Services or Products(s), including the availability of any features of the Site or any Services or Product(s), at any time and without notice. BKI may terminate any authorization and rights given above at any time and without notice. 

 

BKI reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms in whole or in part, at any time and without notice. By accessing or using the Site or Services or purchasing or using any Product(s), you agree to be bound by any such revisions. Accordingly, you should periodically visit this page to determine the current Terms of Use to which you are bound. Your continued use of the Site or any Services or Products following the posting of changes to these Terms will be considered acceptance of those changes. In the event that you do not agree to any changes or modifications of these Terms, you should not continue to use the Site, Services, or such Product(s). 

 

  1. DISPUTES

 

Except as otherwise expressly set forth in these Terms of Use, any dispute, claim or controversy at law or equity relating in any way to these Terms of Use, our Privacy Policy, any Products sold or distributed by BKI or through the Site or any Services, your use of the Site or any Services or Products, or any dispute of any sort that might arise between you and BKI (each a “Claim”) that cannot be resolved informally or in small claims court shall be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.  In order to expedite and control the cost of disputes, you and BKI agree that any Claim will be resolved as follows:

 

  1. Informal Resolution: 

 

Most disputes can be resolved informally. The parties agree to use their best efforts to settle any dispute, Claim, question, or disagreement directly through consultation with BKI, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.  Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the Claim and the requested relief. A Notice to BKI should be sent to Barbie Kalev, Inc., 2003 Texas 114 Hwy, Suite 340#2, Trophy Club, Texas 76262, or by email to [email protected]. After the Notice is received, you and BKI may attempt in good faith to resolve the Claim informally. If the Claim has not been resolved in the ordinary course of business within 60 days of the date of the receipt of the Notice, the parties agree that prior to attempting to resolve the Claim by arbitration, as set forth below, they will attempt to settle the dispute in good faith by mediation.  The parties will use the then-current American Arbitration Association’s Commercial Mediation Procedures, or any other mediation procedure to which the parties agree, which procedure will be non-binding and confidential unless otherwise agreed upon by the parties.  

 

SEE SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SUB-SECTION 17(A).

 

  1. Formal Resolution by Binding Arbitration: 

 

READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION. You agree that any dispute controversy or claim arising out of or relating to these Terms of Use, the applicability of these Terms of Use to the use of the Site or Services, or use or purchase of any BKI Products or other products or services on or in connection with the Site or Services, or to breach or enforcement, interpretation or validity of these Terms of Use, or the determination of the scope or applicability of arbitration shall be governed solely by the Federal Arbitration Act.

 

If the parties do not reach an agreed-upon solution within a period of 60 days from the time mediation is initiated under the Informal Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve Claims, subject to the terms set forth below. BY AGREEING TO ARBITRATION, BOTH YOU AND BKI UNDERSTAND AND AGREE THAT ALL DISPUTES SHALL BE DECIDED BY AN ARBITRATOR AND THAT YOU ARE WAIVING YOUR RIGHTS TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, TO SETTLE DISPUTES. Instead of suing in court, both you and BKI each agree to settle disputes (except certain small claims or as otherwise set forth in these Terms) only by arbitration. The rules in arbitration are different. There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these Terms of Use as a court would.

 

(1) Binding Arbitration:  Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider, the Federal Arbitration Act, and federal arbitration law shall govern all aspects of this arbitration, including, but not limited to, the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Use. If the arbitration is administered by the AAA, it shall be administered under the AAA’s Consumer Arbitration Rules (including without limitation the Supplementary Procedures for Consumer-Related Disputes, if applicable). To start an arbitration, submit a Demand for Arbitration that complies with the requirements of the AAA Consumer Arbitration Rules to the AAA and mail a copy to us. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any Claims where the total amount of the award sought is $25,000 or less, the Claims will be resolved through binding non-appearance-based arbitration unless the arbitrator finds good cause to hold an in-person hearing instead. For Claims where the total amount of the award sought is more than $25,000, the right to a hearing will be determined by the ADR Provider’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider, except as otherwise required or allowed by the ADR Provider’s rules.  You acknowledge and agree that we may be entitled to reimbursement of our AAA, arbitrator’s, and/or attorney’s fees and expenses from you in the event the arbitrator finds the arbitration frivolous, brought for an improper purpose, or otherwise determines that we are entitled to such reimbursement.

 

(2) Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration applies, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

 

(3) Confidentiality: All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

(4) Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or Claims arising from or relating to infringement, misappropriation, theft, piracy, or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also bring an individual action in a small claims court for disputes or claims within the scope of that court's jurisdiction. 

 

(5) Waiver of Jury Trial: THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all Claims (except as expressly excluded in this Formal Resolution by Binding Arbitration section) shall be resolved by binding arbitration. In the event any litigation should arise between you and BKI in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND BKI WAIVE ALL RIGHTS TO A JURY TRIAL (including, but not limited to, any Claims, counterclaims, cross-claims, or third party claims), instead electing that the dispute be resolved by a judge.  Each of the parties acknowledges that this section is a material inducement for the other party entering into these Terms of Use.

 

(6) Waiver of Class or Consolidated Actions: ALL CLAIMS MUST BE ARBITRATED OR LITIGATED, AS THE CASE MAY BE, ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH ANY CLAIM OF ANY OTHER CUSTOMER, USER OR PARTY, WHETHER THROUGH CLASS ACTION PROCEEDINGS, CLASS ARBITRATION PROCEEDINGS, REPRESENTATIVE ACTION, OR OTHERWISE.  THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER. Each of the parties acknowledges that this section is a material inducement for the other party entering into these Terms of Use.

 

These Terms govern to the extent they conflict with the ADR Provider’s rules, including, but not limited to, the AAA’s Consumer Arbitration Rules.

 

  1. Time to Bring Your Claim:

 
ANY CLAIM YOU MAY HAVE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE SITE OR SERVICES (INCLUDING THE PURCHASE OF ANY PRODUCT VIA THE SITE OR SERVICES), OR ANY PURCHASE OR USE OF ANY PRODUCT(S) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES; OTHERWISE, SUCH CAUSE OF ACTION OF CLAIM IS PERMANENTLY BARRED.

 

SEE SECTION 18 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SUB-SECTION 17(C).

 

  1. EXCLUSIONS AND LIMITATION; CONSUMER PROTECTION NOTICE

 

If you are a consumer, the provisions in these Terms of Use are intended to be only as broad and inclusive as is permitted by the laws of your State of residence. If you are a New Jersey consumer, the terms of Sections 7, 8, 10, 13, 17(A), and 17(C) do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms of Use are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, BKI reserves all rights, defenses and permissible limitations under the law of your State of residence. Notwithstanding the foregoing, nothing in this section shall modify Section 17(B) (Formal Resolution by Arbitration).

 

  1.   FORCE MAJEURE 

 

We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

  1.   CONTACT INFORMATION

 

Please send any questions or comments to [email protected].


© 2022 Barbie Kalev, Inc. All rights reserved. 

 

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