Terms & Conditions
Last Updated: September 2nd, 2021
Thank you for choosing Elan Beauty Co!
By purchasing and/or using Elan Beauty Co 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.
Elan Beauty Co reserves the right to modify these terms and conditions at any time.
This document comprises a legal agreement (the “Merchandise Agreement”) between Elan Beauty Co (“us”, “our”, or “Elan Beauty Co”) and any customer of Elan Beauty Co (“you”, “your”, or “Customer”).
This Merchandise Agreement must be read, signed or electronically consented to by you in order to receive the Elan Beauty Co merchandise you are purchasing herewith (the “Merchandise”) and before participation in any Elan Beauty Co training course.
Additionally, in order to minimize the risk of the unauthorized use of your credit card, it will be requested by Elan Beauty Co 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 Elan Beauty Co training class is different from that of the credit card holder paying for Elan Beauty Co products and services; (3) for new international orders; or (4) for large, rush orders.
It is our pleasure for Elan Beauty Co to allow use of the Merchandise to only licensed and/or certified professionals within the beauty, medical or dental industries.
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 Elan Beauty Co products (the “Merchandise”), methods (the “System”), or marketing and training materials, trade name, logo and copyrighted material (the “Brand”) are subject to approval by Elan Beauty Co.
For questions, please email us at email@example.com .
(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
Elan Beauty Co 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 Elan Beauty Co 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.
Elan Beauty Co attempts to be as accurate as possible. However, Elan Beauty Co does not warrant that product descriptions or other content of any Elan Beauty Co Service is accurate, complete, reliable, current or error-free. If a product offered by Elan Beauty Co itself is not as described, your sole remedy is to return it in unused condition.
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 issued to any Customer will expire twelve (12) months from the date of issuance.
Elan Beauty Co 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,” Elan Beauty Co 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 Elan Beauty Co, you acknowledge that the adhesive’s performance may be compromised in shipment due to over exposure to extreme weather conditions/temperature and it is Elan Beauty Co 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 Elan Beauty Co.
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 separate 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: Elan Beauty Co, Attn: Customer Service, 3340 Clays Mill Rd, STE 150, Lexington, KY 40503.
Once received, please allow for up to fourteen (14) days for return processing.
FOR PROFESSIONAL USE ONLY
Elan Beauty Co Merchandise and training materials are only for use in accordance with the laws of your state: (1) by schools that may hire Elan Beauty Co to provide training services at their schools, for purchase and use by students at the schools using our Elan Beauty Co training course; (2) by any student for use in a Elan Beauty Co training course to become trained by Elan Beauty Co (as a “Certificate of Completion as an Elan Beauty Co Training Graduate”) in the Elan Beauty Co eyelash extension technique (the “System”); (3) by approved beauty professionals; and (4) by Certified Elan Beauty Co 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.
Elan Beauty Co Eyelash Extension Merchandise, is not intended, nor should it be used at any time, for self-application.
State licensing requirements for the application of lash extensions vary, so it is incumbent upon you to research the requirements for KENTUCKY, 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), Elan Beauty Co will 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 Elan Beauty Co Eyelash Extension training and/or certification (when available). If requested, you hereby agree to submit a copy of your professional license and/or certificate to Elan Beauty Co at the time of purchase of any Merchandise to our email at firstname.lastname@example.org . You further agree to present the professional license and photo ID, as applicable, if requested by a Elan Beauty Co trainer on your scheduled training date.
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 Elan Beauty Co 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) Elan Beauty Co 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 Elan Beauty Co 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 Elan Beauty Co.
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 Elan Beauty Co and the name, trademarks, service marks, trade dress, logo, slogan, and products of Elan Beauty Co), 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 Elan Beauty Co under any existing or future agreements; (5) Attempt to train another individual on the System without being certified as a trainer by Elan Beauty Co AND a license from the state of KENTUCKY; (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 Elan Beauty Co 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 Elan Beauty Co 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 Elan Beauty Co adhesives, extensions adhesives, extensions, which are critical parts of the Elan Beauty Co System. Merchandise reorder requirements are based on the amount of Elan Beauty Co and product used by a Customer performing between five (5) and eight (8) hours of lash and extension applications per week.
Elan Beauty Co 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, Elan Beauty Co reserves the right to no longer recognize your Elan Beauty Co certification as valid and/or prohibit your use of any Elan Beauty Co Products and Services, including your use of the Marketing Program (defined in Addendum A), if applicable. Elan Beauty Co 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, Elan Beauty Co does not guaranty training certification and maintains the right to “decertify,” or no longer recognize a certificate as being valid. Elan Beauty Co may prohibit use of its products, brand, logo, marketing materials, images, all forms of training materials and intellectual property by those individuals that Elan Beauty Co 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 an Elan Beauty Co training does not guarantee certification.
To earn and maintain your Eyelash Extension training certification with Elan Beauty Co, you must:
(1) Unless a kit is provided within the price of your course fee, i.e., Classic /Volume Basics course, or certain verified school programs, you must purchase a Elan Beauty Co kit prior to receiving your certification (or the equivalent of the cost of a kit in retail value for Elan Beauty Co 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 Elan Beauty Co instructor that you grasp the key concepts; (4) Be able to demonstrate to a certified Elan Beauty Co instructor that you can perform the technique safely; and (5) Maintain the Elan Beauty Co 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.
Elan Beauty Co 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 Elan Beauty Co products performed by you. All training classes are taught in English. No interpreters or associates are permitted to attend classes unless approved by Elan Beauty Co. If you would like to have an interpreter or associate attend a class, please contact us via email at email@example.com for approval. All approved associates or interpreters must sign a confidentiality agreement, and an Observation Fee of $350 may apply.
RESCHEDULING OR CANCELLING TRAINING
Elan Beauty Co 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 Elan Beauty Co, by their own action or due to circumstances beyond the control of Elan Beauty Co 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. OR
(2) Apply the monies paid for the cancelled training to a future training occurring within twelve (12) months of the cancelled training date. Elan Beauty Co 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.
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, Elan Beauty Co 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 Elan Beauty Co.
Cellphones must be turned off from the start of class and up until the designated time of arrival for your model(s), if applicable. 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.
You consent to the recording of your likeness and statements (photograph, film, tape or otherwise, known as “EBC Media”) and grant to Elan Beauty Co and Elan Beauty Co’s 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 EBC Media.
The rights granted herein include the right to use your likeness and statements in EBC 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 EBC Media otherwise collected by Elan Beauty Co 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 EBC Media and waive the right to inspect or approve use of EBC Media as incorporated by Elan Beauty Co.
You acknowledge that you have no ownership rights in EBC Media collected during Elan Beauty Co training and events. Your performance of an eyelash extensions procedure does not grant you any rights or credits in EBC Media captured of such procedures.
Materials received as part of the Elan Beauty Co training program (the “Training Materials”) are considered confidential Intellectual Property as defined in this Agreement, and are authorized for personal use only.Elan Beauty Co 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
Elan Beauty Co takes the protection of its Intellectual Property interests very seriously.
You certify that by virtue of purchasing and/or attending any Elan Beauty Co training or buying any Elan Beauty Co product, you are not an owner, employee, independent contractor or educator of any other competitor to Elan Beauty Co that offers eyelash extension products and/or training. Should you violate these terms or conditions, then Elan Beauty Co 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 Elan Beauty Co Specialists in Good Standing are granted these limited rights to use Elan Beauty Co Intellectual Property.
Your use of Elan Beauty Co 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 Elan Beauty Co Brand. Any action taken that is deemed to compete with Elan Beauty Co business or obfuscate the purpose of allowing a Certified Elan Beauty Co Specialist in Good Standing to use Elan Beauty Co 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 Elan Beauty Co 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 Elan Beauty Co.
Elan Beauty Co regularly audits its Certified Elan Beauty Co Specialists in Good Standing for their use of marketing materials and any Intellectual Property Elan Beauty Co does hold its registered trademarks and copyrights and will enforce its rights to the maximum extent the law allows.
Elan Beauty Co 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 Elan Beauty Co 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 Elan Beauty Co, and materially affects the successful conduct of Elan Beauty Co’s 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 Elan Beauty Co.
Without limiting the foregoing, you shall disclose Confidential Information to one of its employees and/or contractors only with the prior written permission of Elan Beauty Co 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 Elan Beauty Co, or upon termination of the Agreement for any reason, you shall deliver to Elan Beauty Co 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 Elan Beauty Co’ 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 Elan Beauty Co.
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 Elan Beauty Co 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 Elan Beauty Co’s 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 Elan Beauty Co. You shall not, without Elan Beauty Co’s written consent, use Elan Beauty Co’s Confidential Information to develop your own business or to compete with Elan Beauty Co, nor shall Recipient reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody Elan Beauty Co’s Confidential Information. You shall not directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass, or obviate Elan Beauty Co’s interest, or the interest or relationship between Elan Beauty Co 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 Elan Beauty Co, 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 Elan Beauty Co.
Elan Beauty Co 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”). Elan Beauty Co 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 ELAN BEAUTY CO, ITS OWNERS, OFFICERS, DIRECTORS, AGENTS, INDEPENDENT CONTRACTORS, TRAINERS, EMPLOYEES, SUPPLIERS AND LICENSORS (THE “Elan Beauty Co 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 Elan Beauty Co PARTIES BASED UPON YOUR USE OR APPLICATION OF Elan Beauty Co PRODUCTS ON ANY PERSON.
YOU ALSO AGREE THAT ANY LIABILITY OF THE Elan Beauty Co 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 Elan Beauty Co PARTIES FOR THE SPECIFIC PRODUCT AT ISSUE, AND THAT, WITHOUT THIS RESTRICTION, THE Elan Beauty Co PARTIES WOULD REFUSE TO SELL THESE PRODUCTS TO YOU.
IN NO EVENT WILL THE ELAN BEAUTY CO 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 ELAN BEAUTY CO.
YOU SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE Elan Beauty Co 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 ELAN BEAUTY CO 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.
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. Elan Beauty Co may, without your consent, freely assign and/or subcontract our rights under this Agreement. This Agreement shall inure to the benefit of Elan Beauty Co and our respective permitted successors or assigns.
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 Elan Beauty Co 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 Elan Beauty Co 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 Elan Beauty Co, Elan Beauty Co shall have the right in its sole discretion to RESCHEDULE WITH YOU AS SOON AS REASONABLY PRACTICAL after the end of such force majeure. Elan Beauty Co shall reschedule the training hereunder as soon as reasonably practicable following the date of such occurrence. In the event Elan Beauty Co is prevented from performing obligations hereunder as a result of any contingency which is beyond the control of such party (such as interruptions in Elan Beauty Co travel schedule or unforeseen unavailability of Elan Beauty Co), Elan Beauty Co reserves the right to reschedule training. In the event that a Elan Beauty Co training cannot be conducted because of a lack of minimum student attendance, Elan Beauty Co reserves the right to reschedule the training.